German courts can issue what is known as a restraining order (Näherungsverbot). Such an order serves to prevent more serious violations and offenses. Its purpose is to protect a person’s life, health, freedom, and peace by prohibiting another person, on the basis of a court decision, from approaching or contacting them. Typical situations in which a restraining order may be imposed include harassment or unwanted visits by a former spouse or partner, as well as adult children extorting money from elderly parents. Restraining orders can also be used to protect witnesses in court proceedings. Anyone with reasonable grounds to believe they are facing threats or harassment from another person may petition for one.
Once a court issues such an order, typically defining a minimum distance in meters, any violation of it constitutes a regulatory or criminal offense. Under §4 of the German Protection Against Violence Act (Gewaltschutzgesetz — GewSchG), the penalty for violating such an order can take the form of either an administrative fine or a criminal penalty of imprisonment for up to one year or a fine. This was precisely the problem that brought Semyon to our law firm for help — he was accused of violating a restraining order against his ex-wife.
Ekaterina and Semyon (names changed) had a marriage that simply didn’t work out. A once-loving couple turned into bitter adversaries determined to make each other’s lives difficult. The divorce proceedings were contentious, marked by constant arguments and insults — Semyon, in particular, could be cruel, venting his anger at any opportunity. The couple eventually divorced, but her ex-husband couldn’t let it go and kept showing up at his former wife’s door with yet another round of insults. Not knowing how else to get rid of him, Ekaterina eventually applied to a German family court for a restraining order against Semyon. The court order was issued shortly after, and she could finally breathe easy — 25 meters of distance and six months of peace were now guaranteed.
When the young man came to us, he immediately explained to our lawyer that, in the past, he had indeed often visited his former wife — who had kept their shared apartment after the divorce — to pick up his belongings, and that these visits, as often happens, would end in arguments that flared up again with fresh intensity. According to him, though, after the court issued the restraining order, he had never once tried to approach his ex-wife and had made every effort to avoid her entirely. Semyon genuinely didn’t understand what he was accused of, or how he could possibly have violated the order.
Our firm’s lawyer requested the case file to establish the facts. According to the materials obtained, one evening, after dark, an acquaintance of Ekaterina’s spotted him standing by the entrance of her building, pressing the doorbell. Once inside the apartment, he immediately told Ekaterina what he had seen. She went to the balcony door, opened the window slightly, and saw Semyon standing across from the building, photographing her with his phone. The apartment is on the ground floor of a multi-story building. Ekaterina immediately called the police, since, according to her, the distance between them was only a few meters.
To make sense of the situation and build the right legal defense, our lawyer invited Semyon in for a consultation. After going through the contents of the case file with the client, the lawyer set out to reconstruct the events of that evening. Before long, the young man recalled the evening in question and explained that he had indeed been there at that time, but had merely been walking past, going around the side of the building. He remembered the restraining order clearly and would never have gone near the balcony door. Ekaterina may well have seen him from her window, but certainly not at a distance of a few meters, and certainly not holding out a phone — he hadn’t taken any photographs and had simply tried to get around the building as quickly as possible. Asked by the lawyer what he could have been doing there that evening, the client explained that the small town outside Berlin where they both lived is bisected by a fairly wide river, connected only by two bridges. His ex-wife’s apartment is on one side of the river, and Semyon’s current place is on the other. That particular evening, he had a meeting scheduled — which, by an absurd coincidence, happened to be located near Ekaterina’s building — so he needed to reach the other side of town. Since her building stands right at the foot of the bridge, he had no real choice but to go around it; taking the other bridge instead would have cost him three extra hours to reach his meeting.
In drafting the legal submission, our lawyer highlighted the following points in our client’s favor.
First, the witness — an acquaintance of the injured party — claimed he had immediately recognized our client and stated that the man had been wearing dark clothing. This raised some doubt about the reliability of his testimony, given that it was around eight o’clock in the evening, in winter, in darkness, with no lighting in the courtyard — hardly conditions in which recognizing a person is straightforward. Second, our client did not dispute having been near the building that evening, but given the geography, layout, and development of the town, and the fact that the building stood right at the foot of the bridge, he had had no choice but to walk around it. He had not, however, violated the restraining order in doing so and had never come closer than 40 meters to the balcony door. On this basis, the lawyer strongly urged that the case be discontinued under §170 of the German Code of Criminal Procedure (Strafprozessordnung — StPO) for insufficient evidence of an offense. The public prosecutor’s office granted our petition and discontinued the criminal case against our client on that basis. By assembling the right counterarguments, our lawyer was able to show that there simply wasn’t sufficient evidence that an offense had been committed.
Even the most ordinary misunderstanding between former spouses can leave one of them with a criminal record. For our client, things worked out well in the end — though he now prefers to take the long way around and use the other bridge, at the cost of his own time. What is reassuring, though, is that this young man saved himself considerable time, stress, and effort by turning to our law firm for help, and saw firsthand just how significant a role a defense lawyer can play — since only a qualified lawyer can effectively counter the other side’s arguments and find the facts that support your position.
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