Domestic Violence

The Gender Based Violence and Domestic Violence Act[1] (hereinafter “The Act”) defines domestic violence to encompass:

All acts or omissions, including verbal, physical, sexual, psychological or economic violence causing physical and, or moral harm or suffering, including threats of such acts or omissions, coercion or arbitrary deprivation of liberty that occur within a family and, or in intimate relationship, whether or not the perpetrator resides or has resided in the same residence with the victim and shall also include children who are witnesses of violence within a family and, or intimate relationship.[2]

The Act provides a list of people who would be considered as offenders as well as those people that may fall victim to such an offence and such people are referred to as a ‘family or domestic unit’ and include the following:

1. Current or former spouses, civil union partners or cohabitants;
2. Persons living under the same household as the offender or who had lived with the offender within a period of 3 years preceding the offence;
3. Persons whose marriage has been dissolved or declared null;
4. An ascendant or descendant;
5. Other adults sharing the same household;
6. Persons in an informal relationship who are or were dating;
7. Persons who are or have been formally or informally engaged with a view to get married or enter into a civil union;
8. Persons who are related to each other either by consanguinity or affinity up to the third degree inclusively; persons having or having had a child in common

A significant amendment was introduced to ensure gender-neutrality. In fact, the definition of a ‘family or domestic unit’ is defined in such a way where it encompasses a broad range of people who may be considered victims and/or offenders and this excluding any reference to their gender. This notion has been further strengthened through Article 4 of The Act:

            “... in particular measures to protect the rights of victims, shall be secured  without  discrimination  on  any  ground  such  as  age; association with a national minority; belief, creed or religion; colour, ethnic origin and, or race; disability; family responsibilities and, or pregnancy;  family  and,  or  civil status;  gender  expression  and, or gender identity; genetic features; health status; language; migrant or refugee status; national or social origin; political or other opinion; property; sex or sex characteristics; sexual orientation or any other status.”

The procedural nature of the offence of domestic violence in practice, will survive depending on the willingness complaint of the injured party. However, with this being said, a conflict is found between what is actually done in practice and what is laid down in Article 543 of Chapter 9 of the Laws of Malta.[3]

Article 543 provides that the Executive Police ex officio may institute proceedings even without the willingness of the complaint of the injured party when the offence is such that it qualifies to be one of domestic violence. However, the criminal code has also introduced a concept of ‘staying proceedings’ upon the request of the injured party. This would only be applicable after considering whether it is in the best interest of the injured party or any minors or other relevant third parties. It is ultimately in the discretion of the court to take cognisance of these considerations, and the court shall determine whether it should proceed regardless with the case or stay proceedings.

When filing a formal police report the following procedure is followed by the Gender Based Domestic Violence Unit (“GBDVU”) unit: -

1. A Preliminary Risk Assessment is performed by the GBDVU police officer to assess the severity of your case;
2. If there is need for any medical intervention due to injuries these are given immediate attention, and you will be accompanied to a health centre;
3. You will be interviewed in a private setting for the police to collect all the relevant information needed relating to the incident in question;
4. You may also request to be assisted by a professional such as a lawyer, social worker or an interpreter to assist you during the filing of your report;
5. Temporary addresses, contact information and relevant documentation will be collected and recorded by the police;
6. A risk assessment will be carried out in a private setting by risk assessors from Aġenzija Support to establish the level of associated risk. When this assessment is completed, an official document is given to the Police and resented in relative court proceedings;
7. You will be referred to the Victim Support Agency for any further assistance you may need.

During the police investigations, the perpetrator will be duly spoken to by the police and based on the outcome of the said investigations, court actions will follow.

Following a domestic violence report, if the victim is in serious risk, the police shall also immediately apply to the Duty Magistrate for the issuance of a Temporary Protection Order (“TPO”) unless the alleged offender is arraigned in court under arrest. The TPO will remain in force for a maximum of 30 days from the date of issue or until the first sitting in court, whichever is the earliest.

A Protection Order (“PO”) may be issued during court proceedings against any offender charged with domestic violence-related offences, either by the Court ex officio or at the request of any of the parties to the proceedings (usually the injured party). The PO shall remain in force for a period not exceeding 5 years but can be revoked or extended by the Court for further periods.

In passing its judgement, the Court may besides other punishment, bind the offender with a Restraining Order (“RO”) which shall remain in force for such period not exceeding 3 years and as specified by the Court, which may order such period to commence to run from the date of expiration or remission of the punishment.

If you would like assistance in filing a police report, please contact  Dr Robert Tufigno and Dr Delilah Vella.  

[1] Chapter 581, Laws of Malta.

[2] Article 2, Chapter 581, Laws of Malta.

[3] The Criminal Code.