As the first man accused of femicide challenges law in the constitutional court, what are the implications?

Just over a year ago, when politicians from both sides of the house were falling all over themselves in support of Europe’s first femicide law, I wrote that a constitutional challenge of the femicide law would be a matter of when not if. My legal sources all felt that the femicide legal provisions would be unconstitutional, and these views found resonance in research I conducted in case files of the European Court of Human Rights (see expandable box below for exposition on legal principles), which has supremacy over Maltese courts.

Femicide was then made law on 28 June 2022, and five months later Bernice Cassar was gruesomely murdered in a street on her way to work. Her husband, Roderick Cassar, became the first person to be charged with femicide – his case is currently in its pre-trial stage. Cassar has pleaded not guilty.

Now he has filed a lawsuit requesting the constitutional court to declare the femicide law unconstitutional and to provide him remedy for breaching his human rights.

It will take at least a few years to get a final judgement on the constitutional challenge by the final court, probably delaying the actual trial itself. Chances are that Cassar would be released on bail in the meantime – bail is the norm subject to certain exceptions, and any initial reasons or exceptions for its denial tend to weaken over time.

The constitutional lawsuit signed by Cassar’s lawyers – Franco Debono, Marion Camilleri, Arthur Azzopardi and Jacob Magri – raises two principal violations of constitutional safeguards: the prohibition of discrimination and the right to fair hearing.

The femicide law makes the murder of a woman in several circumstances an aggravated offence, militating against leniency in sentencing and, doubly, forbidding the possibility of pleading sudden passion by way of mitigation. The circumstances – or criteria – include the slaying of a woman by a partner or ex-partner as well as a member of her family. This shows the illogicality of the hastily-drafted, poorly-debated law – the murder of a woman by any family member, including another woman, is an aggravated form of murder irrespective of motive or scenario.

A report for the EU Commission last year reported that there are two countries in Europe that have a femicide law – Malta and Cyprus – with Malta’s being the more radical or wide-ranging of the two.

In his constitutional lawsuit, Cassar is arguing that, among other things, the impossibility to plead sudden passion as a mitigating factor breaches his right to a fair hearing. This concept – the chance to plead sudden passion as a mitigating element in homicide – has been in Maltese law since 1854, and it remains invokable in non-femicides, including all murders in which the victim is a man.

The constitutional lawsuit then couples the right to a fair hearing with a second principle – the prohibition of discrimination – which is found in Article 14 of the European Convention of Human Rights and, separately, Article 45 of the Maltese Constitution. The lawsuit makes a point that in the Maltese constitution discrimination is prohibited in its own right (as opposed to European Convention of Human Rights, in which discrimination has to be coupled with another, separate violation to succeed). Discrimination can be on the grounds of gender, race, religious beliefs, political opinion, and so on.

The outcome of Cassar's constitutional lawsuit may well influence any potential moves to enshrine femicide in law elsewhere in Europe.

What happens if Cassar wins the case?

Since files of criminal courts are not open to viewing by public, or journalists, I am unable to check which articles of criminal law Cassar has been charged with. Yet from what I can gather, femicide is a qualifier of voluntary homicide, which suggests that Cassar was charged under the homicide as well as the femicide provisions.

In that case, if the court finds the femicide provisions unconstitutional, the femicide element would be dropped from the charges and Cassar’s charge would be relegated to an ordinary homicide – an offence that can still be potentially punishable by life imprisonment if found guilty.

In that case Cassar would have the possibility of pleading sudden passion, which would be – if accepted – a mitigating factor.

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When is discrimination acceptable to Europe’s supreme court?

The European Court of Human Rights does tolerate exceptions to the general prohibition of discrimination. But it takes the line that “once the applicant has demonstrated a difference in treatment, it is for the Government to show that was justified.” It also puts “the burden of proof in relation to Article 14 of the Convention” on the government (Khamtokhu and Aksenchik vs Russia, 2017).

The ECHR has repeatedly held, in a line considered “settled caselaw” by the court, that “a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.”

This point was originally made – and ever since repeated – more than 50 years ago (in 1968) in a judgement that has become famously known as the “Belgian linguistic judgment”.

As for discrimination by sex or gender specifically, the ECHR said in Khamtokhu and Aksenchik vs Russia that “differences [discrimination] based on sex require particularly serious reasons by way of justification and that references to traditions, general assumptions or prevailing social attitudes in a particular country cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation.”

This is where Malta’s law runs into problems. In one speech after the other in parliament during the debating of the bill, as well as in media articles, all politicians made references to tackling social attitudes, to sending strong or clear message to society, and to laments about patriarchal attitudes. And these are the type of arguments or aims that the court said would not amount to sufficient justification for difference in treatment.

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