From the Bench: Domestic violence and state responsibility
Court orders for the protection of domestic violence victims are only as effective as the system that enforces them
In a recent decision that threads the line between institutional accountability and judicial restraint, the Constitutional Court confirmed that the state authorities breached the fundamental rights of a domestic abuse survivor through a pattern of inaction and inadequate enforcement. The court, however, reduced the damages originally awarded to the victim by two-thirds.
At issue was whether the state failed in its obligations to protect the complainant and her children from years of domestic abuse at the hands of her former partner, despite repeated reports and court-issued protection orders.
The facts are distressingly familiar. The survivor endured prolonged harassment, threats, and alleged violence, prompting her to seek refuge in a domestic violence shelter.
Although the courts had issued both a protection order and a restraining order— one following the aggressor’s own admission of threatening behaviour — he continued to approach, threaten, and instil fear in the complainant and her children. The family lived in a near-permanent state of vigilance, at times self-isolating out of fear.
By 2020 the victim had made so many police reports that she reportedly lost count. Despite this, arrests were few and delayed. On one occasion, the aggressor was only apprehended seven days after a report — despite his documented history. At another point, even the women's legal counsel was the target of threats, raising further concern for her safety and access to representation.
Systemic deficiencies in police response and inter-agency coordination
In 2023, the Civil Court (First Hall) recognised that the state had violated the complainant’s rights under both constitutional provisions and the European Convention on Human Rights. The court found systemic deficiencies in police response and inter-agency coordination. In light of these breaches, it awarded €30,000 in non-pecuniary damages.
The authorities appealed, challenging both the finding of a violation and the amount of compensation.
On appeal, the Constitutional Court affirmed the key findings: that the treatment suffered amounted to inhuman and degrading treatment and that the woman's rights to private and family life were seriously compromised. The court was especially critical of the state’s failure to act swiftly and decisively in response to escalating threats, noting that protective court orders are not mere formalities but instruments that demand enforcement.
Nonetheless, the court tempered the original compensation award. While agreeing that the harm suffered was substantial – psychological distress, personal insecurity, and a collapse of faith in the institutions, it concluded that €30,000 overstated the portion of harm attributable directly to procedural failures. The figure was revised down to €10,000.
In doing so, the court drew a careful line, stressing that the reduction in compensation did not reflect a lesser degree of suffering, but a narrower attribution of responsibility to systemic shortcomings rather than the entirety of the abuse.
Arguments raised by the authorities suggesting that the complainant’s own decisions, including returning to the aggressor, should mitigate state liability were firmly rejected.
The court acknowledged the complex psychological dynamics of abusive relationships and held that such behaviour does not relieve the state of its duty to protect.
Absence of a procedural infrastructure
A recurring theme in the court’s reasoning was the absence of procedural infrastructure: no centralised system to flag repeat offenders, inconsistent follow-ups on reports, and a gap in training for officers handling domestic violence situations. These were not viewed as minor issues, but structural weaknesses that risk undermining the purpose of protective legislation and placing victims in even greater peril.
The judgment also highlights the burden victims often carry in chasing enforcement, following up on investigations, and even supplying officials with basic information. In such circumstances, the court noted that legal forms of protection may exist in theory but falter in practice.
Ultimately, this decision serves as a sober reflection on the gap between the law’s promises and its delivery. Court orders for the protection of domestic violence victims are only as effective as the system that enforces them. While compensation offers some recognition, it cannot replace the safety and stability that prompt, coordinated State action is meant to provide.
The court noted in this respect that the State’s failure can escalate into tragedies which could have been avoided with greater initiative
Dr Arthur Azzopardi is managing partner, and Michaela Sciberras, paralegal at AB&A Advocates.