Rule of Law

University of Malta report on femicide makes unconstitutional criminal law recommendations

A report prepared in a collaboration between the University of Malta and the Women’s Rights Foundation inspired the most radical law on femicide in Europe, and additionally made other recommendations to criminal law that are unconstitutional, this website can report after extensive research. 

The report was published last January as part of an ongoing project called FEM-United, and a month later the Prime Minister Robert Abela cited the report to justify a bill on femicide, which has since become law.

Femicide refers to the slaying of women because of their gender, due to sexual exploitation or sexual violence, or by intimate partner or family member.

The law is now set to be tested after Roderick Cassar last Thursday became the first man to be charged under the femicide law. He has been accused of murdering his wife last Tuesday. He pleaded not guilty.

Malta and Cyprus are the only two EU countries that have specific femicide legal provisions in criminal code. Malta’s law was enacted on 28 June 2022; Cyprus’s law was passed a week later, on 7 July 2022. No other country in the EU has a specific definition of femicide enshrined in criminal law.

Yet Malta’s law has a wider scope than its counterpart in Cyprus, including making the murder of a women by any family member an aggravated offence irrespective of motive or scenario.

Malta’s law also singularly goes as far as making a second more radical exception to criminal law (and jurisprudence): it outlaws the possibility of an accused pleading temporary insanity as a mitigating or excusable factor, in the process making femicide an exception among all types of homicide. This means that someone accused of willful homicide in its femicide limb cannot be excused on the basis of committing homicide due to “sudden passion or mental excitement.”

Legal research and consultations by this website indicate that Malta’s legal provisions on femicide are incompatible with two constitutional principles, the prohibition of discrimination and the right to fair hearing.

University rector noncommittal on report recommendations

This website asked the University of Malta rector, Profs Alfred Vella, whether the university endorses the various recommendations to changes in criminal law made in the report. (Questions and reply were made before femicide was made law in Malta – this website has been investigating this subject, and associated cases, for many months.)

“The report,” he replied, “is not a University policy or a guideline but shows the findings of a study carried out as part of a project on the subject matter.”

He added that university “academics and other researchers wrote their conclusions based on data which they established empirically and the University does not enter into the merits of these conclusions.”

The FEM-United Malta report was authored by the director of Women’s Rights Foundation and lawyer Lara Dimitrijevic, university lecturer Marceline Naudi, university research support officer Martina Farrugia, and Emily Galea, an MA graduate and  “Communications Specialist” at the Women’s Rights Foundation.

Copyright: Yuliya Loginova - stock-adobe.com

Aside from the recommendation on femicide – since made law – the FEM-United Malta report also made other recommendations for changes to criminal law that legal experts consulted by this website deem unconstitutional. These include “GPS monitoring” of those accused of domestic violence offences and released on bail during proceedings, those given suspended sentences, as well as those on “restraining orders.” (Restraining orders does not appear to feature in Maltese law – Maltese law only has provision for ‘protection orders’.)

Legal experts told this website that such widespread, indiscriminate use of electronic monitoring, or “GPS monitoring”, would constitute a violation of the right to privacy in the European Convention of Human Rights. For example, an invasion of the right to privacy via electronic tagging of an accused on bail can only be justified in cases of serious crimes, not all crimes.  

As for the recommendation for “GPS monitoring” of those handed a suspended sentence, a similar principle applies. Suspended sentences may be given in lieu of imprisonments of 2 years or less. This means that these are not classed as serious crimes, and, as such, legal experts told this website that human rights courts would find it hard to countenance an invasion of the right to privacy in cases of suspended sentences.

The report also quotes the Council of Europe's Grevio report and recommends the "stepping up efforts to monitor and enforce protection orders, including through protocols/regulation and technical means such as electronic tagging."

There is some more nuance in this: electronic monitoring in the context of enforcement of protection orders. And that draws attention to circumstances in which GPS monitoring can be justified - in active investigations. For example, if a victim reports that an alleged perpetrator who is on bail, or someone subject to a protection order, is stalking her or breaching the protection order, then the police can be empowered in the context of an investigation about stalking or breach of protection order to use GPS monitoring to gather proof of the crime of stalking or breach of protection order. (Software for GPS monitoring exists and it is only sold to law enforcement agencies.)  

Seeking criminal law solutions

The FEM-United Malta report is part of an EU-funded project that involves universities in Germany, Portugal, Spain, Cyprus and Malta. Each university published a report on the situation within the country where it is situated.

Logos of University and Women's Rights Foundation on page 2 of FEM United report

One of the things that stands out in Malta's report is the high number of recommendations, and the high proportion of criminal law recommendations. Out of a total of 25 recommendations in the FEM United Malta report, nine of them are legislative and mostly seek to deploy criminal law as a tool. By comparison, there are a total of 10 recommendations in the Cyprus report, and only one (arguably two) criminal law recommendations.

Cyprus, like Malta, has now specifically defined femicide as a separate limb within ‘willful homicide’ and made it an aggravated offence. (However, as already pointed out, Malta’s femicide provisions appear more radical that Cyprus’ femicide provisions.)  

The law in other EU countries

A study commissioned by the European Parliament and published last month found an additional 13 EU states (aside from Malta and Cyprus) where femicide is an aggravated offence in criminal law. But none of those 13 define femicide specifically or exclusively, or narrow court's choices, to the same extent as Malta and Cyprus.  

The main issue with Malta’s law is the element of discrimination – hence a possible violation of Article 14 of the European Convention of Human Rights – on the basis of gender of the murder victim. This is because if the victim is female in a set of circumstances – including the perpetrator being a partner or former partner, or any family member – that becomes an aggravated type of homicide in Malta’s law and the perpetrator cannot plead temporary insanity. But if the victim in the same circumstances is a man, it is not an aggravated offence and the perpetrator can be “excused” if he or she proves that the murder was committed due to temporary insanity (“under the first transport of a sudden passion or mental excitement”, as the law puts it). 

As reported in this website last Friday, 17 percent of all men murdered in Europe are slayed by their intimate partners or family members, and the other 13 EU countries mentioned above have laws that appear to take into account this reality – and that are not discriminatory.

The study conducted for the European Parliament found that these 13 other EU countries make it an aggravated offence if the perpetrator is a family member, current or former intimate partner, or a person who abused his or her authority. In such scenarios, there is no distinction on whether the victim is male or female.

Copyright: Mathias Alvez - stock.adobe.com

Most of them also make it an offence if the death was an outcome of sexual violence against girls or women, or if someone was murdered due to their gender. 

The study found that ten EU countries have no criminal law provisions for murders committed by an intimate partner, or for any other circumstances associated with femicide. Yet this does not preclude courts from punishing murders of women or girls or intimate partners in certain circumstances more harshly, as well as murders by family members in certain circumstances (honour killing for example). It means that courts would be free to take into account the circumstances of each case.

It is legitimate for courts to calibrate a criminal sanction to send a message to society but they can only do that within the context, or dynamic, of the specific case in front of them (courts are sensitive to societal sentiment or sensibility, and this percolates into the jurisprudence).

Legal critics of the Maltese femicide law tend to point out that homicide is already liable to life imprisonment, and that courts have to take into account all circumstances. And in this sense, critics maintain, there was no need to create a discriminatory law – all in the name of sending a message, or changing patriarchal attitudes, according to pronouncements by politicians – that is probably destined to be found in violation of human rights in constitutional courts anyway.

Featured image: Art installation in Italy about domestic violence.  (Copyright: Aron M - Austria - stock.adobe.com)

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