Pulling the plug on domestic violence prosecutions

The term ‘domestic violence’ is very broad and encompasses any form of violence, be it physical and non-physical violence which occurs within the domestic and family unit. The concepts of ‘domestic’ and ‘family unit’ are also themselves broad and don’t just equate to people living under the same roof. They extend to former spouses, persons who have a child in common, relatives, persons who were once in a relationship such as a long-time ex-girlfriend or long-time ex-boyfriend and even to annulled marriages. The law safeguards every possible scenario, thus maximising protection.

The latest Gender-Based Violence and Domestic Violence Act of 2018 implemented the Istanbul Convention on preventing and combating violence against women and domestic violence. This convention was adopted in 2011 in response to Opuz vs Turkey (2009)—a case which exemplified the gravest consequences of granting the complainant absolute discretion to withdraw a domestic violence complaint.

In Opuz, the applicant and her mother were repeatedly subjected to domestic violence by the applicant’s husband. Despite filing multiple complaints, the cases were often discontinued once they withdrew the complaints, persisting until the applicant’s mother was ultimately murdered by her husband. This case shook the international community.

The European Court of Human Rights noted that the legislative framework should have allowed prosecuting authorities to continue the criminal investigation against the husband, even after the withdrawal of complaints, because the violence he committed was sufficiently serious to warrant prosecution.

This case exposes the most serious risk in granting complainants the absolute discretion in pulling the plug on a domestic violence complaint. This risk was identified by the Maltese legislator six years prior to Opuz in 2005, wherein parliament spent almost one whole year (March-December) debating the then-Domestic Violence Act which also amended parts of the Criminal Code.

Prior to 2005, domestic violence proceedings could only be instituted on the basis of a complaint and cases were automatically discontinued if the complainant later withdrew it. The 2005 amendments, through Article 543(e) of the Criminal Code, allowed authorities to pursue domestic violence cases ex officio and also removed the automatic termination of cases upon withdrawal of a complaint.

MP Mario de Marco had described the introduction of ex officio prosecutions as the most important amendment in this area of law.

The amendment also included an important proviso: While the complainant may request the court to stay proceedings, the court retains ultimate discretion in extinguishing the criminal action after considering the best interests of all involved, including minors and third parties.

In drawing from his experience as a lawyer, then MP José Herrera, during the parliamentary debates highlighted the pressures complainants sometimes face: “In cases where the children have grown up loving their father, they may not want to see him go through a criminal trial, and they may begin threatening their mother. Sometimes, even in the lawyer’s office, they say to her: ‘Are you going to send our father to prison? Are you going to make a mockery of our family?’”

He further noted: “From my extensive experience, I can say that there are cases in which the complaint is withdrawn under pressure, but these are the exception. Around 1% are withdrawn due to pressure, while the rest are withdrawn because the complainants genuinely wish to do so.”

The discretion is ultimately in the hands of the presiding judge or magistrate if to stop proceedings or not. A very delicate balance which Article 543(e) is proposing concerns the best interests of private and family life on one hand and the best interests of the victim and justice as a whole on the other hand.

The courts have also examined these parliamentary debates. In the Police vs Norman Cascun (2019), the Court of Criminal Appeal made sense out of the possibility of withdrawing a complaint. It stated that the purpose of this provision was that, in cases of domestic violence, the supreme interests of family relationships would be safeguarded, perhaps in an attempt to preserve what could still be preserved and to avoid friction or deterioration in interpersonal relations between family members, who may ultimately wish to continue living together under the same roof or to maintain their domestic context with one another.

The Court emphasised that, in its view, the emphasis of the law in this proviso is placed on the victim’s choice rather than on the Court’s discretion.

On a similar note, the Criminal Court in the Republic of Malta vs OMISSIS (2022) stated that just as the Istanbul Convention seeks, as far as possible, the prosecution of cases of violence against women and domestic violence, it likewise does not wish for such proceedings to operate to the detriment of the very victims in whose name and in whose best interests the convention was adopted.

In the Police vs Tyson Bugeja (2024), the Court of Criminal Appeal stressed that when the Commissioner of Police proceeds against an aggressor on his own initiative then the parties involved have less or no say, if to halt the proceedings or not. The scenario would be different if the same case would have been initiated by a complaint by the victim.

Today’s reality sees magistrates who specialise in this very delicate area of law, who work with great challenges and with impressive amounts of cases to decide upon. Each day, people are arraigned in court on domestic violence following a risk assessment report which is conducted by Aġenzija Appoġġ. With all the inroads and investment made in this field no one can ever know what happens behind closed doors.

Domestic violence law operates with a double safety valve—the complainant may choose to pull the plug on proceedings to protect the honour of the family or fix what is fixable, while the court retains ultimate discretion to override such a request when necessary. With this two-fold mechanism any familiar particularities with a trace of “Opuz flu” are flagged, allowing the alarm bells to be rung properly to avoid even the slightest “Opuz bruise.”