A Restraining Order
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A Restraining Order
A person who walks in the street and is bothered by another person who is following his/her footsteps can act in several ways. He/she can contact the police and file a complaint of harassment. In addition, any person suffering from harassment has the right to file a claim for compensation to the court in the form of a civil action. At the same time, he/she can also appeal to the court to issue a restraining order against that person. But, what is the law when a person who lives with his relative in the same house is harassed by that same person, threatened by him, and sometimes even suffers from mental abuse? It turns out that even in such a case, he/she can petition for a restraining order.
What is the difference between a restraining order issued against a foreign person and a restraining order issued against a relative, and when is it possible to petition for a restraining order? and what considerations will be considered by the court in issuing a restraining order. To find out the answer, please read on.
Before I begin, please note that the following article is a general article and is not in any way a substitute for specific legal advice. For this purpose you can arrange a meeting with our office.
What is a restraining order?
When we walk down the street and a person follows our steps actually spies on us, it harms our dignity, our autonomy, and it mainly causes us apprehension.
When we receive threats and curses from a person who lives with us in our home, or when we suffer from inappropriate behavior by neighbors in our residential building, for example – in the case where our neighbors throw garbage onto the balcony of our apartment on purpose – our autonomy and our quality of life are harmed. Clearly, in all the cases I have described, there is harassment.
When we suffer from harassment, we can always act over the long term, i.e., turn to the police and file a complaint, and also petition the court for financial compensation. However, until we receive the appropriate remedy, time will pass and we will probably still suffer from harassment. Therefore, in such cases, it is possible to apply to the court for a restraining order.
A restraining order is in fact an order given by the court or by a police officer, instructing person A. not to approach or contact person B. As a rule, a restraining order is a temporary order and is considered temporary relief, intended mainly to “calm the spirits” between the conflicting parties. A restraining order is usually an order which could include a number of prohibitions, such as the ban to approach someone, the ban to contact him/her directly or indirectly, and sometimes to ban someone from holding a weapon if it is held legally. To sum up this point – a restraining order is a judicial order and its purpose is to protect the applicant from another person or group of people harassing him/her.
What are the laws dealing with restraining orders?
The option of petitioning for a restraining order is mainly regulated by two laws and is also part of the authority of a police officer, and I will explain later. Regarding the relevant laws, I’m referring to the Prevention of Domestic Violence Law, 5751-1991, which deals with restraining orders relating to violence or disputes between family members. This law also deals with the conditions for receiving a restraining order, restrictions that may be imposed by virtue thereof, as well as the powers of the Family Court or Magistrate’s Court in its case.
The second law relevant to the area of restraining orders is the Prevention of Threatening Harassment Law, 5762-2001 which deals with the issuing of restraining orders against strangers, and this is the difference between this law and the prevention of Domestic Violence law. The Prevention of Harassment law also sets out the conditions for receiving a restraining order and the grounds for receiving it, and deals with the granting of powers to the Magistrate’s Court.
The Prevention of Threatening Harassment Law
The Prevention of Threatening Harassment Law enables any person to appeal for the issuing a restraining order of another person who is bothering him/her. One might ask what the definition of bothering is. The answer is set in the law and according to circumstances. The Prevention of Threatening Harassment Law was enacted for one purpose: to protect every Israeli citizen from their routine and the quality of life being harmed, and to protect the body and dignity of every citizen. This is the purpose of the Prevention of Threatening Harassment Law, as mentioned in the first section of this law – “the purpose of this law is to protect a person from harm to the serenity of his life, privacy, liberty or body, by another person who has harassed or physically injured him/her.” It should be noted that a person who is bothered, or is threatened, or is afraid of harm to his body or privacy, is entitled to appeal to the court for an order to prevent threatening harassment. In other words, the Prevention of Threatening Harassment Order is actually the legal term for the more familiar term – a restraining order.
What is Threatening Harassment, in according to the Prevention of Threatening Harassment Law?
Section 2 of the Prevention of Threatening Harassment Law defines “intimidating harassment.” Section 2 states: “Threatening harassment is the harassment or threats of a person by any person in circumstances that provide a reasonable basis to assume that the harassing or threatening person may again harm the harassed person’s peace of life, privacy or liberty or that he/she may harm hi/hers body.” In other words, threatening harassment is any harassment that harms the fabric of life and privacy of another person. In addition, further to Section 22, there is a determination that includes a list of cases and behaviors, each of which ostensibly attests to the existence of threatening harassment. For example, detecting or stalking another person and, as a result, violating privacy can be recognized as threatening harassment. Threats to another person can be recognized as threatening harassment. Illegal contact, while disturbing and harassing, can be recognized as threatening harassment. Damage to the property of another person, or damage to the good name of a particular person, can together and separately testify to the existence of threatening harassment.
How can I obtain a restraining order under the Prevention of Harassment Law?
Before I answer the question, please note that a request to issue a restraining order in accordance with the Prevention of Threatening Harassment Law can not only be submitted to the court by the harassed person but also by the Attorney General or a person on behalf of the harassed person. Furthermore, in order to obtain a restraining order from the court, in accordance with the above mentioned law, a number of elements must be proven. First, it must be proved that a particular person, to whom the order is to be directed, has acted in a manner that constitutes threatening harassment, i.e., threatened him, threatened his property or reputation, spied after him, or alternatively harmed his privacy or threatened to harm his privacy. Second, in order for the court to issue an order to prevent threatening harassment, it is not sufficient to raise a general argument, but the applicant must prove, on a reasonable level, that he/she has indeed been subjected to threatening harassment as defined in the law. Among other things, it is advisable to use recordings, photographs, text reprints, email, etc. If the court finds that threatening harassment has been used against another person, the court may order the issuing of an order.
What does the Prevention of Harassment Order contain?
The Prevention of Threatening Harassment Order may include provisions restricting the harasser from approaching the harassed person, contacting him/her, and many other instructions. In addition, the court may order the harasser to deposit a guarantee in the court’s treasury in order to ensure the execution of the order. Also note that a violation of a judicial order, including an order to prevent threatening harassment, constitutes a separate criminal offense. I will explain this later in detail.
What is the temporary validity of the Prevention of Threatening Harassment Order?
Section 6 of the Prevention of Threatening Harassment Law provides that a restraining order, in accordance with the said law, will be limited to a period of six months. However, the court has the authority to return at a later stage and extend the order for another six months. In other words, as a rule, a restraining order shall not exceed a total period of one year. This being said, only in very exceptional cases can the court extend the order again for a total period of two years, but as stated, this authority is reserved only for exceptional cases and the court must explain its decision in such cases.
How do you apply for an order to prevent threatening harassment?
The procedures for submitting an application for an order to prevent harassment are set out in section 7 of this law. As a rule, a person requesting a restraining order in accordance with the law will submit a written request to the court and attach an authenticated affidavit. The court may then order the granting of an ex parte order, or order the date of a hearing in which both parties and their representatives will be present, if they are represented by an attorney. At the hearing, the court will hear the arguments of the parties and then will determine whether to issue an order. If an order is issued, the court will order the conditions that accompany it. On the other hand, if the court rejected the request and even found that there was no place to file it, then it may impose payment of expenses on the applicant. I will elaborate on this later.
Prevention of Domestic Violence Law
Violence and threats among family members, especially when directed at women and children, are unacceptable. In order to combat this phenomenon, the Law on the Prevention of Domestic Violence was enacted. “The proposed bill, designed to ease the plight of women and children under the harsh hand of a violent family member, was adopted by the Karp Committee to allow the court to remove a violent family member from his or her family who suffered from his/her violent behavior, Both in the family home and in the workplaces and study establishments where the family stay.” (Bill for the Prevention of Domestic Violence, p. 2322).
The Prevention of Domestic Violence Law grants a family member the right to petition for a restraining order against another family member. If the Anti-Harassment Law is intended to enable the removal of a strange person, the Family Harassment Prevention Law applies to family members. A family member for the purpose of the application of this law, is defined in the Prevention of Domestic Violence Law as “a spouse, parent or spouse of a parent, parent of a spouse or spouse of the parent, grandparent, child of a spouse, sibling, nephew or niece” and “a person who is responsible for the livelihood, health, education or welfare of a minor or helpless person who lives with him, and a minor or helpless person who lives with the person who is responsible for him as aforesaid”. In other words, if the harassment is committed among family members, then the Family Court should be the court to refer them to for the purpose of issuing a restraining order. I’d like to emphasize that a restraining order is defined in the Prevention of Domestic Violence Law as a “protection order”. This is the relevant legal language in these cases.
When will the court order a protection order?
In accordance with article 3 of the Prevention of Domestic Violence Law, not only the harassed person, but also the Attorney General or a relative of the harassed person, can apply to the court for a defense order. To obtain a protective order, a number of alternative conditions must be proved, as follows: The person suffering from harassment must prove that immediately before the application was submitted, he suffered from violence from the person to whom the order was directed, including – suffering from sexual violence or false confinement. Alternatively, a protection order may be issued in the event that the frequent conduct of the person to whom the order is directed to gives reasonable concern that the applicant of the order may be harmed in the future. In addition, a protective order may also be issued in cases where there is evidence of suffering from mental violence and ongoing emotional abuse in a manner that prevents the applicant from fulfilling a reasonable life and harms his/her routine.
What conditions are included in a protection order?
As in the case of the Prevention of Threatening Harassment order, if the court ordered the granting of a protection order, then it can order that the harasser will not directly and indirectly approach the person applying for the order, will stop harassing him/her and cease any contact with him/her. In addition, in accordance with the Prevention of Domestic Violence Law, the court has the authority to order the person to whom the order is directed to, to undergo certain treatment, including treatments of anger and violence management, in order to fulfil the order. In addition, contrary to the Prevention of Threatening Harassment Law, the court has the power to order a person against whom a request for a protection order has been filed, to deposit his weapon until further notice. This are drastic means of the court, but unfortunately the reality in which women and children are attacked by family members, including the husband, sometimes requires the use of drastic measures. Note that the court also has the authority to order the deposit of a bond, in favor of a person against whom a protective order has been issued, if it turns out he/she wrongly accused.
How long will a protection order be valid for?
Similar to the Prevention of Threatening Harassment Order, a Protection Order shall be in force for a period of six months and thereafter the Court may extend the order for one year in total. However, subject to the existence of exceptional circumstances and taking into account that the court must explain its decision, the court can extend a protection order for a period of two years in total.
Can expenses be charged if an invalid request is made for a restraining order?
The answer is yes. Both the Prevention of Threatening Harassment Law and the Prevention of Domestic Violence Law give the court the power to impose heavy legal costs, including expenses in favor of the state treasury, in cases where a person makes a futile request to issue a restraining order. There is no doubt that people often misuse requests for a restraining order. These requests are sometimes also filed in order to harm and exhaust another party, unnecessarily and unlawfully. Therefore, the court has the authority to resort to harsh measures against applicants who act in bad faith and without real cause.
Is it possible to appeal a decision regarding the issuance or non-issuance of a restraining order?
The answer is yes. A decision of the Magistrate’s Court or the Family Court, in the context of an application for a restraining order, whether under the Prevention of Domestic Violence Law or under the Prevention of Threatening Harassment Law, is subject to appeal to the District Court. In addition to the District Court, it is also possible to appeal to the Supreme Court.
Restraining order by police officer – possible?
The answer is yes. A police officer, too, has the authority to order the issuing of an order for removal, as part of detention conditions. The Detention Law allows a police officer, within the framework of an investigation and arrest process, to release a suspect to his home but to impose restrictions on him, such as, for example, to deposit a guarantee, to issue an order against him/her to leave the country and to obligate him/her to update the police with any change of address, and to require a suspect – within detention restrictions – to appear at certain times at the police station and even to deposit his weapon.
According to Section 42 of the Detentions Law, a police officer may also order the removal of a suspect from a particular place, including a particular neighborhood or city. In addition, a police officer is authorized to issue a restraining order against a suspect, within the limitations of the detention procedure and also to prohibit the suspect from contacting certain persons during the course of the investigation. In other words, a restraining order may be issued not only by virtue of the laws mentioned, but also by virtue of the Detentions Law, by a police officer. Please note that if a police officer orders the imposition of a restraining order in the framework of an arrest proceeding, then his decision may be appealed to the court.
Not only police officers have the authority to impose a restraining order as part of an arrest procedure, the detention court has the authority too. As stated, in the framework of detention proceedings, the court is also authorized to extend the detention of a suspect, but at the same time, or at a later stage, order the release of a suspect under certain restrictions. Among the restrictions that the court may impose on a suspect: prohibiting contact with certain parties, whether they are witnesses or complainants. This is a restraining order issued not in the framework of the laws mentioned above, but in the framework of detention proceedings. In other words, when a police officer or the court orders a restraining order within the framework of detention, the purpose of the order is to protect the security of witnesses or complainants, but also to prevent disruption of investigation or trial proceedings.
What is the law in case of violation of a restraining order?
A person who violates a restraining order, whether it is a restraining order in accordance with the Law for the Prevention of Domestic Violence or the Law for the Prevention of Threatening Harassment, commits a criminal offense in accordance with the Penal code. This law states in Section 287 that a person who violates a judicial order given by law, commits an offense of two years imprisonment, and in the event that this is a judicial order intended to protect the life, body or wellbeing of another person, the offense is more severe and the punishment is 4 years imprisonment. A person who violates a judicial order in the framework of an arrest or order of a police officer is liable to be arrested and brought for detention behind bars. Violation of a restraining order in the framework of an arrest procedure is a criminal offense, in accordance with the said article above, concerning the violation of a court order.
In conclusion
There are two main types of restraining orders: the first is an order to prevent Threatening Harassment, which is particularly relevant in cases where harassment is carried out by a stranger. The second type is a Protection Order, which refers to cases involving family members. Another type of restraining order is an order issued by the court or a police officer in the context of detention proceedings. One way or another, it is very important to consult a family lawyer, if you wish to appeal for a restraining order or when such a order has been filed against you.
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