In simple terms, self-defence is when an individual protects himself by using force against someone who is attacking him.

Self-defence is a plea which can be raised by anyone charged before the criminal courts for homicide or bodily harm, and is regulated by the Criminal Code, Chapter 9 of the Laws of Malta.

The key provisions of self-defence in the Criminal Code are found under Title VIII, Of Crimes against the Person, Sub-title III, Of Justifiable Homicide or Bodily Harm. Article 223 provides that no offence is committed when a homicide or a bodily harm is ordered or permitted by law or by a lawful authority or is necessary for an individual to defend himself or another person.

Article 224 of the Maltese Criminal Code further provides that actual necessity of lawful defence includes when the aggressor is killed or injured:

(a) in the act of repelling at nighttime between the hours of sunset and sunrise.

(b) upon entering an inhabited house, apartment or a connected building either by scaling walls or breaking in.

(c) upon committing or attempting to commit theft aggravated with violence.

(d) as a defence from one’s own chastity or that of another person.

The plea of self-defence was the subject matter of an appeal filed before the Criminal Court of Appeal presided by Madam Justice Edwina Grima on the 31 May 2023 in the name Police vs Desislava Vasileva Maksimova.

In her appeal, the appellant Maksimova requested the court to vary a judgement delivered by the Court of Magistrate as a Court of Criminal Judicature wherein she was found guilty of having grievously injured her partner. She was sentenced to two years imprisonment.

In her appeal, Maksimova claimed that she was wrongly convicted since she acted in self-defence.

Elements of self-defence

The Criminal Court of Appeal prior to delivering its judgement, observed that there are three elements at law that are doctrinally required for the crime of homicide and bodily harm to be legally justifiable.

1) The offender must commit a serious threat or aggression;

2) The unprovoked and inevitable offence threatens imminent injury or death, and

3) That the reaction must be proportionate to the threat or aggression.

Hence, what the defence had to prove, was that the danger faced by the appellant during the incident was unjust, grave and inevitable and that the response to the danger faced by the appellant was objectively proportionate to the extent of the aggression.

The court referred to notes by Sir Anthony Mamo, further adding that: “The accused must prove that the act was done by him to avoid an evil which could not otherwise be avoided."

In other words, the danger must be sudden, actual, and absolute. If the danger was expected with certainty, one would not have been justified to rashly brave such danger and place himself in a situation of having either to suffer death or grievous injury or to inflict it.

In the second place, the danger must be actual: if it had already passed, it may, at best, amount to provocation or, at worst, to cold-blooded revenge, and not to legitimate defence.

Thirdly, the danger threatened must be absolute and could not be averted by other means.

The court commented further that the ratio legis (the reason or purpose behind making a law) behind the plea of legitimate defence to justify a killing or body harm, was when a person found himself in a serious situation and was unable to resort to other means of escape or to avoid the danger, thus being forced to resort to protect himself or any other person from the actual, serious and unavoidable danger.

If it resulted that the person had other choices at the moment of the incident which he could have adopted, then the justification of self-defence would be missing.

Furthermore, in those situations where it resulted to the court that the force exercised by the person defending himself was not proportionate to that received by the aggressor, the crime could be excusable on the grounds of the exercise of excessive self-defence as regulated in article 230(d) and 227(d) of the Criminal Code.

Article 227(d) of Chapter 9 of the laws of Malta provides that wilful homicide is to be considered as excusable “where it is committed by any person who, acting under the circumstances mentioned in article 223, shall have exceeded the limits imposed by law, by the authority or by necessity.” Article 230(d)  further provides that “the crime of wilful bodily harm shall be excusable in the cases mentioned as excuses for wilful homicide in article 227(d).”

The court in this case after having examined all the evidence and the arguments brought forward by both parties, was in a position to conclude, that the appellant actions could not be justified under articles 223 and 224 of the Criminal Code, nevertheless her action could be considered as excusable in terms of article 230(d) and 227(d).

Hence, the court opted to change the punishment given by the Court of Magistrate as a Court of Criminal Judicature and instead of two years imprisonment, the appellant was sentenced to eight months imprisonment suspended for one year.

Dr Frank A. Tabone is an associate at Azzopardi Borg and Associates, Advocates.