The compilation of evidence against a man accused of murdering his ex-girlfriend in Sliema has been delayed after the defence challenged Malta's new femicide law.
Fabian Eliuth Garcia Parada denies the aggravated crime of femicide, which was introduced in the Criminal Code in 2022 and makes him liable to a harsher punishment.
His case was due to begin on Thursday but was deferred until next month after his defence said the new law was discriminatory and breached his fundamental rights.
Colombian national Sandra Ramirez, 43, was found dead with stab wounds on her body in an apartment on Sir George Borg Street on January 13. Her ex-boyfriend, also from Colombia, turned himself in to police and told them through a translation app: "I murdered my ex-partner in an argument inside my home."
The accused, 39, is the second person to be charged with the aggravated crime of femicide.
Roderick Cassar, who stands accused of the femicide of his estranged wife, Bernice, is also challenging the new law before the constitutional courts.
According to the criminal code, a homicide can be considered a femicide if a woman is killed as a result of domestic violence, honour killings, misogynistic intentions, religious practices such as genital mutilation, and sexual abuse.
Under the reform, the ‘crime of passion’ defence, which has been used in the past to secure softer sentencing, will no longer be considered an extenuating factor when the judge decides on any punishment in the case of femicide.
Defence lawyers José Herrera and Matthew Xuereb argued that the accused should not be denied this line of defence outright.
"There is discrimination," Herrera told the court, "because persons accused of murder end up in a different position if the victim is a woman. In case of femicide, the accused is placed at a disadvantage."
The defence asked for the court to refer the case to the constitutional court to decide on the "human rights issue".
Herrera argued that if the defence were to file a separate constitutional case, the criminal case would still continue. But if they asked the court for a reference, the criminal case would be suspended.
Jacob Magri, lawyer for the victim's family, who were not present in court, argued that the excuse of sudden passion is not excluded outright as femicide is an aggravating factor to homicide so the circumstances for that aggravation need to be proved.
The court accepted the prosecution's call for some time to file a written reply to the "unexpected and unusual request" and the case was deferred until February 6.
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Case deferred
1.18pm The court defers the case to February 6. But it’s not over yet. Defence lawyer Bugeja tells the court that the accused was being denied all his personal possessions.
"He’s going to end up with the same clothes, underwear and shoes for life!” remarks Herrera. The court minutes that the accused was not being given access to his belongings, including money, and so he had to depend on third parties.
The defence said that if necessary the accused should be escorted to his Sliema home so that he could collect his personal belongings. He has no one to do that for him.
The court ordered notification of this minute to the Corradino authorities and ordered that the accused be given his belongings and all necessary assistance to collect his belongings from the residence where he lived before the incident.
Debate over whether to continue
1.15pm There’s some debate at the moment because the Attorney General lawyer questions whether the court will start to hear evidence today. And obviously that is not what the defence wants today.
Attorney General lawyers say that the defence should have raised this constitutional issue in a written application before the hearing. The defence hits back saying that such a request may be raised in open court.
Fabian Eliuth Garcia Parada is accused of murdering his ex-girlfriend. Photo: FacebookDefence want case suspended
1.10pm The court grants the prosecution time to file a written reply to the defence's request. Jacob Magri, lawyer for the victim's family, argues that the justification is not excluded outright and is still available to the defence.
This is because femicide is not a separate crime but an aggravating factor to homicide. So the circumstances for that aggravation need to be proved.
Herrera disagrees and wants the criminal case to be suspended for now.
He says that if the defence were to file a separate constitutional case, the criminal case would still continue. But if they asked the court for a reference, the criminal case would be suspended.
'Crime of passion'
1.06pm The defence lawyer explains his concern that sudden passion cannot be claimed as defence in this case.
“We are not saying that this is our only defence,” says Herrera but asks why the defence should be denied this line of defence outright.
He says it's important at this very early stage for the defence to know what the constitutional position is today.
His colleague Matthew Xuereb steps in.
"The law denying this legal plea outright militates against leniency," he says "This is a diligent move by the accused, even if upholding it would suspend this case."
How does the law define femicide?
1.03pm A quick explainer here. The concept of femicide was only introduced in to Maltese law in 2022.
According to the criminal code, a homicide can be considered a femicide if a woman is killed as a result of domestic violence, honour killings, misogynistic intentions, religious practices such as genital mutilation, and sexual abuse.
The key issue is that the ‘crime of passion’ justification – something used often by defences to get a softer punishment for the perpetrator - is no longer considered an acceptable factor when the judge comes to decide on any punishment in the case of a femicide.
Femicide challenge
12.53pm Within ten minutes of the compilation of evidence beginning, lawyers for the defence raise a challenge to the relatively new femicide law.
Herrera argues that the accused has been discriminated against because of the aggravating charge of femicide. It impinges upon his right to a fair hearing, the defence lawyer says.
The defence wants the constitutional court to settle the issue and for the time limits on the compilation of evidence to be suspended in the meantime.
Interpreter needed
12.49pm We need an interpreter for this case. While she comes over from another hall, court is informed that lawyers Arthur Azzopardi, Jacob Magri and Frank Anthony Tabone will represent the victim’s family who today are not present in court. Lawyer Yanika Bugeja is also joining the defence team.
Accused appears
12.45pm The accused, Fabian Eliuth Garcia Parada, has just been escorted into court along with his lawyers, José Herrera and Matthew Xuereb. Inspector Wayne Camilleri is prosecuting together with Attorney General lawyers Kaylie Bonett and Ramon Bonett Sladden.