The Court’s message is clear: The State has a positive obligation to ensure that its citizens enjoy their fundamental human rights

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Despite the Superintendent’s order for the closure of the Courts of Justice as from the 16th March, 2020 (Legal Notice 65 of 2020), the Constitutional Court on the 27th March 2020 delivered a landmark judgment when it comes to domestic violence. Presided by Chief Justice Joseph Azzopardi, Mr. Justice Giannino Caruana Demajo and Mr. Justice Anthony Ellul, the Constitutional Court confirmed an award of €5,000 in damages to a victim of domestic violence. The message conveyed is clear: the State has a positive obligation to ensure that its citizens enjoy their fundamental human rights.

In a case filed by a woman against the Commissioner of Police and the Attorney General (today the State Advocate), the Court of First Instance decided that the lack of immediate action by the defendants amounted to a breach of fundamental human rights – specifically Article 36 of the Constitution and Articles 3 (prohibition of torture, inhuman or degrading treatment) and 8 (right to respect for private and family life) of the European Convention of Human Rights. The First Hall of the Civil Court further ordered the Commissioner of Police to pay the woman €5,000 in damages in view of said breach.

When it comes to the merits, the plaintiff is a wife who has been suffering domestic violence by her husband for a number of years.  The Constitutional Court agreed with the Court of First Instance that the plaintiff is a vulnerable person who has filed countless reports with the Police in different police stations and despite that criminal proceedings had been instituted against her husband and protection orders issued, the husband persists in his actions which has left the plaintiff to live in fear. The Court also noted that there were instances in which a report would have been filed however the Police failed to take action or delayed taking such action.

The Court of First Instance emphasized that the State of Malta failed to protect the victim when it has an obligation to do so in virtue of Article 3 and 36. The Court highlighted several ‘systematic failures’ amongst which it noted that the Police did not have a centralised system wherein protection orders were documented and thus the burden lay on the victim to provide the details of said order to the Police. The Court stated that such information should be available in every police station of every district. The Court also noted a lack of a centralised office for the prosecution of domestic violence cases, therefore cases end up spreading across the different districts and each one is tackled separately and by a different Inspector despite the fact that the victim and aggressor of said cases would be the same. Thus there is a lack of continuity and Inspectors wouldn’t even know if other reports were filed in other districts by the same victim. Moreover the Court noted that the Police did not follow a standard operating procedure when tackling domestic violence cases and thus highlighted the need of guidelines that are to be followed scrupulously. From the evidence produced the Court also noted that domestic violence reports were not treated expeditiously and were not given the priority they require.

In view of the above failures, the Court concluded that the victim lost all hope when it came to acquiring protection from the Police authorities and from the judicial system. As a result the Court stated that the system failed gravely especially when one considers the numerous reports filed and the failure of the Police to take action on some of the said reports.

The Constitutional Court noted that the appeal application stated nothing to convince the Court that there was a justification for the inaction of the Police to proceed against the husband. Nor did the State Advocate convince the Constitutional Court that the First Hall of the Civil Court made an incorrect evaluation of the facts brought before it.

The Constitutional Court confirmed that the wife suffered a psychological trauma not only because of her husband’s behaviour but also because of the fact that her husband continued in this behaviour despite the protection orders issued against him, which evidently shows that the State failed and that this was tantamount to a breach of the positive obligations of the State to ensure respect for the plaintiff’s private and family life.  Thus the Constitutional Court upheld the judgment of the Court of First Instance and ordered the defendants to pay all the relative expenses.