Malta is a signatory of the Istanbul Convention which requires positive state action to prevent and protect women from domestic violence. This includes serious threats, beating and stalking. However, local authorities still struggle with a lack of resources, and consequently, are at times considered to be incapable of acting in a timely manner. This in turn continues to encourage and foster a sense of impunity among perpetrators of domestic violence to an alarming degree.

It was this scenario which led a woman to take constitutional court action against the authorities in Malta.

The woman and her children had been receiving threats from her previous partner. Although several reports were made to the police, they did not take immediate action or provide adequate information and security.

This, the woman said, harmed her even more and she had to seek psychological help as she and her children continued to live in fear.

Proceedings were filed in 2020 against the State Advocate and the Commissioner for Police before the first hall civil court (constitutional section) detailing the lack of state action the woman suffered.

She sought a declaration from the court that the lack of immediate and effective action by the respondents, or any of them, amounted to a violation of fundamental rights. Her case was decided on October 12, 2023.

The court heard that despite a restraining order issued on 29 July 2019, the aggressor had continued to scare and threaten the applicant and her children so much so that there was a time when she had no choice but to seek refuge at a shelter.

The woman claimed that she felt broken, that not enough attention was given to her by the police and that her complaints were not taken seriously.

Essentially, her complaint against the police was based on the accusation that despite the reports she made, they failed to arrest and bring her aggressor before the court in a timely way and thus she continued to suffer from more episodes of domestic violence.

The main argument the defendants put forward was that the applicant was to blame for what she was going through. This because, despite having seen and experienced the violent/aggressive behaviour of the aggressor, she chose to stay with him so much so that she even got pregnant once, twice, three times from this same person.

The court partly agreed with the respondents' view in so far as they argued that the claimant should have learnt from her mistakes and moved on after the first signs of abuse and aggression.

However the court said it also understood that such relationships were exploitive and dangerous; in the sense that they often left the victim depending on the aggressor.

The court stated that it was of the firm opinion that such abuses may never be tolerated and/or excused and it was precisely for this reason that the State must assume a proactive role in order to avoid such incidents.

It further recognised that the cardinal point of these procedures was that the mechanism in force in the field of domestic violence was lacking and without a solid, effective, preventive and punitive framework.

It further confirmed that the State’s responsibility was threefold in terms of law:

• i. The obligation to design and implement an effective legislative framework which not only offered protection but also served as a deterrent against domestic violence;
• ii. the implementation of immediate and effective protective measures in order to protect the safety of the victim and her family members;
• iii. the obligation to conduct an effective investigation as well as the implementation of an effective judicial system in order to combat and prevent domestic violence.

It was found that the police lacked a centralised system, and therefore when a report was made at a police station, the police taking the report would only be aware of that report being made at that moment. They had no system to help them detect other reports which may have been previously been made in connection to a specific aggressor.

Due to this serious lacuna in the system, the police taking the report at a particular police station would not have any information about any restraining or protection orders issued against the aggressor and in favour of the victim.

Access to such information would no doubt help the police assess the level of risk of the case better and potentially minimise the excess documentation which the victim would have to carry to the police station each time, in an effort to persuade them that she was saying the truth.

The court said that situations like these were what caused the public to lose faith in the institutions, and which resulted in victims giving up on the system and failing to report incidents.

Notwithstanding the fact that the aggressor has been breaching the restraining order continuously, it took the police seven days from when the victim made a report to arrest the aggressor. This was unacceptable, the court said, and the state was in serious default of executing its obligations to implement measures to ensure the timely, immediate and effective measures to ensure immediate protection to victims.

The court established that the claimant’s fundamental human rights in terms of article 36 and 44 of the Constitution had been breached as were her rights in terms of articles 3 and 8 of the Convention.

It further considered that the facts of the case could have led the claimant to suffer an even graver tragedy and that the psychological harm she endured was extremely serious.

The court therefore awarded her compensation of €30,000, which is to be paid by the State Advocate due to the fact that the police inefficiencies were issues which the State should have handled.  

Within its concluding remarks, the court made a strong statement; that no liquidation of compensation may ever be enough to protect citizens from episodes of domestic violence. It was only with a strong and effective legislative foundation and system that the state could fight this battle, providing the protection and peace of mind which should be the foundation stone within all homes and intimate relationships.

Dr Rebecca Mercieca is Senior Associate at Azzopardi, Borg & Associates Advocates.