District police officers are usually the first responding officers who receive information and complaints about offenses. In cases of domestic violence (domestic violence as defined by the Gender-Based Violence and Domestic Violence Act), the district police officer, of the rank of a police constable or a police sergeant, will first take the initial report and conduct preliminary investigations. Depending on the severity of the case, the officer can either issue charges by means of a citation or refer the case up to the inspector on duty for further investigations and arraign the perpetrator in court by means of arrest. A police report should be taken, even if no medical certificate is provided or the person asks the police not to proceed further with the investigation, as under the Criminal Code, domestic violence reports are considered an independent duty that the police are responsible for.[40]
If a victim calls at the police station in a crisis, the police would go to the house to calm the situation and provide their assistance to ensure the safety of the victim and/or any children involved. The police would then assist in either returning the victim to the residence or seeking assistance from Aġenzija Appoġġ (the national agency for children, families and the community, which safeguarding and promoting their well-being through the development and provision of psycho-social welfare services) if it deems that a shelter is needed. If the latter is the case, the police should accompany the victim to the shelter, if necessary, in the presence of a social worker. In such cases, the police should also accompany the victim to get his/her personal belongings. After giving immediate assistance to the victim, the police will offer all victims to be referred to the police Victim Support Unit (VSU) for further support. The VSU was established in 2017 and offers immediate support and information to victims about what to do and where to find help soon after filing a police report. The police have an internal circular of procedures to be taken and what services are offered to all victims of crime.
Following the introduction of the Gender-Based Violence and Domestic Violence Act, and its amendments to the Criminal Code, which came into force in 2018, the police together with Aġenzija Appoġġ are now using the DASH risk assessment tool. DASH is essentially a checklist of questions used by the authorities to identify the level of risk of domestic violence on a case-by-case basis.
Upon the receipt of any domestic violence report, information or complaint requiring proceedings to be taken against a person or persons, the police officer taking the report will contact Aġenzija Appoġġ for the assistance of a social worker/professional trained by Aġenzija Appoġġ, who will be available 24 hours a day, seven days a week to conduct a risk assessment of the victim(s). Apart from risk assessments, these workers also work on protective factors, safety planning and other forms of interventions that are required at the stage of identification and management of risks. This type of work safeguards the well-being of the victims and the children, if any, concerned.
Following such an assessment conducted by the Aġenzija Appoġġ social worker/professional, in the presence of the police officer, if it becomes apparent that the victim is at high risk of harm, the police officer on duty will then immediately notify their divisional duty inspector. The duty officer will then request the duty magistrate to issue a temporary protection order in favor of the victim, stating the grounds for the request and giving the magistrate all information that will enable them to decide accordingly. The temporary protection order will be issued once the magistrate is satisfied that there are sufficient grounds for its issuing.
While it is only the victim who has legal status and locust standi in criminal proceedings, they can be provided with assistance and support from either the police VSU, Aġenzija Appoġġ or NSOs. A person requesting legal aid in respect of domestic violence is eligible for the free legal aid service as stipulated by Article 57 of the schedule attached to Chapter 581 of the Laws of Malta.
There must be reasonable grounds as per the language in the protection order provision, including:
- for the purpose of providing for the safety of the injured person or of other individuals
- for the keeping of the public peace
- for the purpose of protecting the injured person or other individuals from harassment
- other conduct that will cause a fear of violence[41]
Where a protection order is requested by any party to the proceedings, such request will be appointed for hearing to determine whether there is sufficient prima facie evidence for it to be issued by the court within seven days from when such request is made. The evidence must be as full and satisfactory as available, and the testimony of one witness can be sufficient.[42]
Yes, false accusations are a criminal offense that can lead to imprisonment for three days to 18 months depending on the severity of the crime that is the subject of the false accusation. Note that the punishment can be more serious when a false accusation is committed with intent to extort money or other effects.[43]
The age of consent in Malta is 16 years old. The age of consent is the minimum age at which an individual is considered legally old enough to consent to participate in sexual activity. Malta does not have a close-in-age exemption. The age of consent in Malta was 18, however, this was reduced to 16 in 2018, with the passing of the Gender-Based Violence and Domestic Violence Act.
Consent is briefly discussed in the Gender Identity, Gender Expression and Sex Characteristics Act. Specifically, regarding the right to bodily integrity and physical autonomy, it is not lawful for professionals to conduct a sex assignment treatment on a minor until they can provide informed consent, except in exceptional circumstances.[44]
In relation to sexual violence (including rape), consent must be given voluntarily as a result of the person's free will assessed in the context of the surrounding circumstances.
For a long time in Malta, to prove a statutory rape offense two elements had to be demonstrated: (i) violence; and (ii) carnal connection. However, as of "Act 13" of 2018, the element of violence was substituted with the element of consent. Simply put, whether or not there was consent to a carnal connection will be the deciding factor for proving whether the offense of rape was committed or not.[45] The law states that consent must be given voluntarily as the result of the person's free will assessed in the context of the surrounding circumstances.[46]
As this is a recent change in the law in Malta, there is very limited jurisprudence dealing with the issue of "consent." To mention a recent case, a 21-year-old university student was released on bail in July 2020 after being charged with raping a woman. This charge was also placed three years after the incident. The court was in possession of chats in which the victim claimed "how much fun she had" and there was also continuous chatting between the two until May 2018. The accused was granted bail with a deposit of EUR 1,000 and a personal guarantee of EUR 5,000. The court also imposed a protection order in favour of the victim. This is just one example of how "consent" can be established and ruled over. Essentially, it would be the victim's word against the accused.
Yes, these defenses are available.
No offense is committed when a homicide or bodily harm is ordered or permitted by law or by a lawful authority, or is imposed by actual necessity either in lawful self-defense or in the lawful defense of another person. While the Criminal Code does not explain what exactly factors into a claim of self-defense, it does explain that there are cases of lawful defense where self-defense is to defend one's own chastity or the chastity of another.[47]
Every person is also exempt from criminal responsibility if at the time of the act or omission complained of, such person was either:
- in a state of insanity
- constrained thereto by an external force that they could not resist[48]
Witnesses must swear an oath that the evidence they give will be the truth, the whole truth and nothing but the truth. Giving false testimony is a criminal offense that can lead to imprisonment for a time depending on the seriousness of the offense in question.[49]
The husband or wife of any party in a court case are competent witnesses and may be compelled to testify in a case at the request of any of the parties. However, the husband cannot be compelled to reveal anything that his wife may have told him in confidence during their marriage, and vice versa, nor can one spouse be compelled to answer questions that may result in the other spouse being the subject of criminal prosecution.[50]
Other exempt facts include information or knowledge entrusted to lawyers, legal procurators or priests in their professional capacities that would be subject to privilege. Privilege is meant to protect certain relationships where the confidentiality of the conversation is paramount. For example, if a client feared that telling their lawyer certain information could incriminate the client, the client would not be able to share much information freely and the lawyer could not give them an appropriate defense. Privilege here allows the client to receive a full legal defense. However, if a lawyer or a legal procurator obtains their client's consent, or the priest obtains the consent of the person who confessed, they may be questioned about matters that came to their knowledge (subject to consent); the lawyer and the legal procurator regarding what has been entrusted to them by the client for the purposes of the case, and the priest for those facts they become aware of under the seal of the confessional or through a confession.
Except by court order, accountants, doctors, social workers, psychologists and marriage counsellors cannot be asked to reveal information given to them by their clients under professional secrecy or if they became aware of such information in their professional capacity. This privilege is also extended to the interpreter engaged to convey such secret information. A witness bound by professional secrecy cannot reveal secret and confidential information, except in certain circumstances according to the particular law applicable to the case. For example, there are still limited circumstances where the privilege would no longer apply, such as where a child's life is in danger, privilege may not bar an individual from reporting that danger to the police.
There is no distinction between first offenders and repeat offenders. The Criminal Code of Malta only sets forth the minimum and maximum penalties and sanctions for domestic violence offenders, which range from fines to jail time for perpetrators. The judge has the discretion, depending on the specific facts of each case, to decide on the sanctions.
Yes, the Criminal Code of Malta sets forth that offenders will be liable to imprisonment for a term of one to 12 years depending on the specific crime and circumstances of the crime. The Criminal Code of Malta was modified to incorporate the Istanbul Convention. Because of the broad definition of domestic violence, several crimes could be triggered. Malta's Criminal Code was amended in several sections, and an important one to note is the inclusion of moral and psychological harm as a criminal offense. Mainly crimes set forth in Title VII of Part II of Book First "Of crimes affecting the dignity of persons" sets forth the different crimes that amount to domestic violence, which were modified and broadened following the Istanbul Convention.[52]
If at any time during the period that the order is in force it is proven to the court that the person has failed to comply with any of the conditions of the order, the person will be guilty of an offense and will, on conviction, be liable to a fine of EUR 7,000 or to imprisonment not exceeding two years or to both a fine and imprisonment. [53]
The Criminal Code of Malta only considers fines and incarceration as punishment for crimes. Economic fines may be imposed and the judge determines the amounts on a case-by-case basis, depending on the specific circumstances and the crimes. Each crime has a minimum and maximum penalty threshold.
Yes, all victims (the term victim is defined broadly in the Victims of Crime Act as: (i) any person who has suffered harm including physical, mental or emotional harm or economic loss that was directly caused by a criminal offense; (ii) family members of a person whose death was directly caused by a criminal offense and who have suffered harm as a result of that person's death; and (iii) minors who are witnesses to forms of violence) are offered the opportunity to be notified when the person convicted is released, or has escaped, from detention. In the case of an escape, the victim will be given relevant measures to ensure their protection.[54]