The police must not issue charges on the basis of a police report without first carrying out an investigation in order to establish whether the dispute is of a criminal or civil law nature. This was held by Magistrate Donatella Frendo Dimech in Il-Pulizija -v- Paul Spiteri and Dolores Spiteri. The judgement was delivered by the Magistrates’ Court on 13 January 2021.
The two accused were charged with pretended rights and of harassment.
As to the first charge the Court in its judgement explained that the accused and the injured party live in the same block of apartments but two different apartment. The accused without asking for permission painted half the façade, leaving the other half unpainted.
The Court quoted from a Court of Appeal judgement Il-Pulizija -v- Denise Caruana decided on 30 November 2016 where the court held that the Court must investigate whether a state of affairs has been changed in that one party has deprived the other from the use. Article 85 of the Criminal Code is intended to stop anyone from take the law in one’s own hands. It is enough if it is proved that one takes material possession or detention from another for the crime to be committed. In Il-Pulizija -v- Emanuel Abela decided by the Magistrates’ Court on 13 October 2014, the court listed the elements of the offence of pretended rights. The first being that act which negates the possession contrary to the other party’s will. A pretended right takes place when the person carrying out the offence believes that he or she has a right to carry out this action.
As to this case, the court held that it does not seem that the injured party’s possession of her apartment was taken from her. The Court pointed out that this a matter is of a civil nature and should have never been brought before the criminal courts. The prosecution failed to show that the accused did not have a right to paint the façade as they did. The Court acquitted the accused from the first charge of pretended rights.
However, the court did not stop there. It commented that the parties of this case should have gone to the civil courts and not to the criminal court and described this as a serious abuse of the court system and the use of the police. The Court also criticized the police in failing to do its duty and investigating the complaints it receives. The investigation would show whether the matter at hand was of a criminal nature or else a civil law issue. The police should not issue charges on the basis of a complaint and should consult with legal experts to establish this. The Court complained that it was becoming a habit for the police to simply press charges against individuals without investigating the case. It is traumatic for individuals to face criminal charges, which carry prison sentences. The court emphasised that this should not take place. It is the police which decides whether to proceed against an individual or not and not the complainant. If a person is not satisfied with the reason why the police did not take action, then he can use the procedure mentioned in Article 541 of the Criminal Code and challenge the Commissioner of Police.
As to the harassment charge which allegedly took place in 2013 and after, the court held that the charge sheet should have sufficient details for one to defend himself. This is stated in Article 360(2) of the Criminal Code. Therefore, the charge is vague. According to the evidence the acts that the injured party complained of took place in 2013, 2016 and 2017.
The Court quoted from Il-Pulizija -v- Joseph Bajada decided on 2 May 2013 by the Magistrates’ Court in Gozo, which held that the crime of harassment was introduced in 2005 and is intended to sanction a course of conduct and not one incident. In Black’s Law Dictionary, harassment is defined as:
“Words, conduct or action (usu. Repeated or persistent) that being directed at a specific person, annoys, alarms or causes substantial emotional distress in that person and serves no legitimate purpose.”
Harassment takes place when the accused alarms another person. There may be a variation of actions which fall under harassment. However, those actions must be intended to cause fear.
Since the law speaks of course of conduct, the facts of this case do not fall under this. The injured party’s testimony shows this and in fact they are single incidents spaced out in a number of years.
The Court then moved to acquit the accused of the offence.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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