The bill on legal changes to the criminal code that will make femicide liable to consistently higher prison terms than other types of murders has been making a swift passage through parliament where party leaders this week sought to own the legal changes.

Malta is now set to become, by unanimous vote in parliament, probably the first EU country to adopt such radical provisions in criminal law.   

It is for the Government to show that [discriminatory law] was justified

European Court of Human Rights

Prime Minister Robert Abela said that after attending a vigil for rape and murder victim Paulina Dembska last month, a young woman told him “that something had to be done and I took that message home with me and discussed it with Lydia [his wife]”.

PN leader Bernard Grech said it had been the PN that had called for such a law initially. He also spoke of his 21-year-old daughter being transfixed to her phone for 24 hours following Dembska’s rape and murder.

Abela also said that “we have to send a clear message that femicide will not be tolerated”, and then he cited from a report that “noted that our society is still patriarchal, that there is still much gender-based violence.”

Yet, while party leaders seek to gain political mileage, extensive research into caselaw or jurisprudence by this website suggests that their talk makes it more – not less – likely that the legal provisions on femicide would be struck down in the Maltese or European constitutional courts on grounds of discrimination by sex or gender.

The new legal provisions define femicide as seven types of offences: when the male perpetrator is an existing or past intimate partner, or a member of the same family; in murders motivated by misogyny, honour, religion or cult; and in murders accompanied by sexual violence, or murders of prostitutes or sex slaves. In such cases, in which a male perpetrator is convicted of homicide or attempted homicide of a female victim, the law introduces the concept of “militating against leniency” when it comes to sentencing. It also removes pleadings of “sudden passion or mental excitement” as a mitigating factor.  

This will make femicide liable to consistently longer prison sentences overall than all other murders. Such ‘difference in treatment’ (or discrimination) is generally prohibited by Article 45 of the Maltese Constitution and Article 14 of the European Convention of Human Rights (ECHR).

Exceptions in limited ways

The ECHR, Europe’s highest human rights court that has jurisdiction over Maltese courts, does tolerate exceptions to the general prohibition of discrimination by sex, or race, or religion, or political beliefs. 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 over and over again – 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.”

Criminal lawyers' advise to male client severely imprisoned for femicide would be that constitutional lawsuit can lead to reduction of prison term

Malta’s law runs into problems

All the four lawyers who have championed the bill, or been involved in its design, made references to social attitudes, and at least three of them justified it by lamenting about patriarchal attitudes. These are – aside from the Prime Minister and Opposition Leader mentioned above – the Equality Minister Owen Bonnici and Women’s Rights Foundation Director Lara Dimitrijevic.

The latter two wrote articles in The Times of Malta, with Dimitrijevic’s article titled Femicide bill is not discriminatory and Bonnici’s The land of equality.

In a key paragraph, Dimitrijevic wrote: “Inserting the idea of femicide in our law is not a solution by itself and it will not solve the problem of femicide and violence against women.  Far from it. But, by naming it, we are making it visible. There are more steps to follow that will require determination and political will. I will continue working towards that.”

She tried to defend the bill by making reference to Article 4 of the Council of Europe Convention on preventing and combating violence against women and domestic violence, writing “that special measures to protect women only are not discriminatory” (the Convention does not define such special measures in any way, although this clause has to be balanced with the preceding clause that says that Convention provisions have to be implemented “without discrimination on any ground such as sex, gender…”).

Dimitrijevic also asserted that, within the context of the ECHR’s teachings, “wanting to prevent violence on women is an objective and reasonable justification”.  

In his article, Equality Minister Owen Bonnici wrote of “harmful patriarchal mentalities and misogynistic attitudes ingrained in our communities and that those mentalities and attitudes stand out among other contributing factors which impede women from enjoying full equality compared to the other gender.”

He then emphasized that “we need to send a clear and strong message that there is no room for such outdated and toxic beliefs in our country.”

He wrote that the legal provisions, rather than putting men at a disadvantage, “seek to compensate for the empirically proven prevailing situation of a society and culture which are still heavily shaped by patriarchy and by a narrative of gender stereotypes and gender roles and wherein an unacceptable prevalence of domestic and gender-based violence, including femicide, are, unfortunately, still present, as are elsewhere.”

Most of these comments fall under the “general assumptions or prevailing social attitudes” that the ECHR said would not justify exceptions to differences in treatment.

Moreover, if Malta had to be taken to court, the ECHR would be keenly aware that – since Malta is most probably the first Council of Europe country that will make femicide liable to punishment more severe than other types of crimes – the court's judgment would set a precedent. For this reason, it would exercise particular rigour in examining the case and delivering judgment.  

Dissent within the Court on discrimination

Even in recent cases in which the difference in treatment is limited and defined, there has been significant dissent among the presiding judges.

It is not clear what tangible, measurable outcomes the legal provisions – hence the difference in treatment – would accomplish

In one of those cases (Khamtokhu and Aksenchik vs Russia), decided in the Grand Chamber, a man sentenced to life imprisonment challenged the Russian law that specifies that only men could be given life sentences. The judgment stitched together a range of arguments, among them two eminent reasons that led to a finding of no discrimination. One, the need to protect women who were demonstrably more vulnerable to violence in prison. Two, the court also made the innovative argument that the fact that one gender – or half of the population – was not subject to life imprisonment (a practice disdained by the court) represented progress in moving away from imprisonment-until-death regime that only remains in force in some countries.

Yet five out of seventeen judges delivered a dissenting opinion, arguing that the threshold of “serious reasons by way of justification” had not been met and the law was in breach of Article 14 as well as Article 6 (the latter is the right to fair trial – the ECHR has stated on various occasions that Article 14 has to occur concurrently with another article to make it invokable in a lawsuit).  

Another case (Alexandru Enache vs Romania) grappled with a discrimination in Romanian law in which convicted mothers could have imprisonment deferred until their child had its first birthday, but fathers could not. The ECHR did not find a violation of the human rights in this case either due to the interests of the child, including they argued the strong bond that exists between mother and very young children (studies actually show that the bond is equal with both parents at least after 6 months of age).

But two of seven judges pronounced a dissenting opinion in which they argued that the justification for discrimination was not compelling enough.  

In these two cases the discrimination in law was defined, the outcomes measurable. In the femicide bill in Malta, it is not clear what tangible, measurable outcomes the legal provisions – hence the difference in treatment – would accomplish.

It’s not apparent how or whether the legal provisions would reduce the incidence of femicide. The only things we have heard is that it would send a “strong message”, or a “clear message”, or that “by naming it, we are making it visible”, or that patriarchal attitudes have to be called out. Yet that seems to take us into the territory of “general assumptions” and an urge to attack the “prevailing social attitudes.”

This means it is a matter of when, not if, someone challenges the Maltese legal provisions that are set to pass unanimously.

Criminal lawyers would probably advise any male client given the severest imprisonment for femicide that a constitutional challenge would be viable run towards a potential reduction of prison term.

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