The Malta Independent 28 January 2023, Saturday
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The justice gap

Mary Muscat Sunday, 4 December 2022, 09:04 Last update: about 3 months ago

The social sciences call the institutional failure of supporting victim-survivors as the ‘justice gap’. It overlaps with the attrition rate, which is the number of reported cases dropped by the police because they are not deemed prosecutable in relation to the traditional legal markers.

Do the Home Affairs and Justice Ministers recall the Pisani vs State Advocate and Commissioner of Police delivered in March 2020 by the Constitutional Court?  That’s almost three years ago, and so much of that judgement still reflects Bernice Cilia’s situation. Although there were tweaks in the system, the protection order shortcomings are just as glaring.

The Constitutional Court judgement was dated 27 March 2020, and it echoed the first judgement delivered in July 2019 that had already established the ‘nuqqasijiet sistematiċi’ in the police and court systems. It spoke of the State’s failure to uphold its positive obligation to safeguard the victim’s life, privacy and her right to family.

To be fair, it described the police set-up before the current DV unit was established and before there was a specific court sitting for such cases. However, even after the protection order in the Pisani case was issued in 2015, five years later the victim was still trying to convince the system of the most basic need for protection.

The main red flag mentioned by the Constitutional Court was the absence of a centralised system informing police stations of the existence of protection orders. That’s another justice gap for you: are there internal police guidelines on addressing this?  The combination of efforts by the victim to recount her story over and over, while sustaining violence in its different forms, was described by the Court as ‘martyrdom’.

It is interesting how the idea of the justice gap also came through with the first court’s description of another procedural issue: the difficulty of prosecuting cases because one or more elements of the crime were missing. But it also required the police to give a satisfactory account of the kind of assessment carried out that determined that the crime was borderline and hence not prosecutable. I’m sure there are ways of dealing with this gap with the help of legal amendments addressing what the social sciences have long established as victimising behaviour.

The judgement also spoke of another two issues: the continuation of instances of harassment and stalking of the victim by the perpetrator, even while criminal action was in progress against the same perpetrator. The second issue, referring to the unnecessary delays taken by the different courts in dealing with the case, which deteriorated  her personal integrity, subjecting her to severe psychological trauma.

Sounds familiar?

The two Covid lockdowns of the Courts led to a massive backlog of the existing cases, plus it precipitated new ones because of the isolation of victims from support systems. The issue can only be addressed by creating a system that is parallel to the Family Court, but at the Magistrates’ level.

In Bernice Cilia’s commemoration ceremony held on University Campus, two students read out a Facebook post uploaded by a victim waiting for 4 to 5 hours with children in tow at police GHQ in a sub-standard reception that offered no privacy, not just of the person filing the report, but of the third parties’ calls answered by the receptionist.  After that, there was another 1 to 2 hours spent before the DV police.

This is a sharp contrast to the high levels of customer-care adopted by the Community Police for instance. If the system is victim-centred, why are we still using spaces that haven’t been updated and refurbished to basic standards of interior design? Why can’t the administration running police GHQ walk the talk? Is it simply an issue of finances? Perhaps it is time to remove the DV unit from GHQ in the same way that the FCID was located elsewhere in new and specifically designed premises. Using a parallel example, if Child Protection Services has developed a Children’s House, why not use the example for DV?

As for privacy, apart from the Data Protection serious breaches, doesn’t the Victims of Crime Act protect the right to privacy in Art. 10B as well? If there are different laws pointing towards the same police obligation, why is it still an issue?

And if children are involved, why isn’t the prosecution asking the Court to appoint support persons as per art. 14A of Cap 539? How empowering is it to have Child Advocates accompanying the prosecution team? Look at how financial crimes are prosecuted by a team, for example.

Our restorative justice legislation already speaks of an “electronic monitoring programme”. Start using it.

The 2020 judgement noted that ‘the system failed the victim and it failed (her) big time’. There is so much to answer for. Who’s bridging the gap now?

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