Fiona Galea Debono
Where the law justifies homicide
Claire Zammit Xuereb: did she stab Gera?
The law will be on Claire Zammit Xuereb’s side if it results that she stabbed Nicholas Gera to defend her husband, Duncan Zammit, at their Sliema penthouse.
Article 224 of the Criminal Code specifies that if a homicide, or bodily harm, occurs at night and involves the victims breaking into the property, then no offence would have been committed.
According to the Criminal Code, it is a case of lawful defence if an aggressor is killed, or injured, at night-time – between the hours of sunset and sunrise – if the homicide, or harm, is the result of preventing the aggressor from entering an inhabited house, apartment or a connected annex, either by scaling walls or breaking enclosures and doors into it.
If it were established that Mr Gera broke into the penthouse in High Street, Sliema, in the early hours of New Year’s Day, Mrs Zammit Xuereb could plead self-defence, that is, if it resulted that she had hit him with a knife, legal experts said. At 6.15 a.m., it would still be pitch-dark, therefore, within the boundaries of the law. Investigators believe Mrs Zammit Xuereb, the daughter of entrepreneur Angelo Xuereb, somehow intervened to defend her husband, who was being attacked by Mr Gera.
The police had the option not to prosecute the inhabitants of the house. Usually, their decision would be taken after consultation with the Attorney General’s office.
However, the scenario changes if Mr Gera was invited to enter or had knocked on the door and was let in.
“In that case, one would have to investigate how the incident started, or was provoked, how it escalated, who was the first assailant and whether, in repelling the first assault, the person defending himself exceeded the limits of self-defence. Then, it becomes like an ordinary fight in the street in daytime,” a legal expert said.
If, as the police suspect, Mr Gera scaled the walls of the roof of Falcon House, the scene of the crime, jumped into the terrace of Mr Zammit’s penthouse a floor below and slipped in through the gym, it would be a case of “full” self-defence, in accordance with article 224 (a).
Even if a window on to the terrace were left open, it would still “not nullify” the climbing down from the roof onto the terrace, which would lead to justifiable homicide or bodily harm.
However, the reason why the window would have been left open could give rise to further questions and change the scenario again. If it transpires that one of the occupants of the house did not close it on purpose for Mr Gera to enter, then it would no longer be a question of self-defence, the expert noted.
The use of excessive self-defence does not come into the picture if Mr Gera obtained access to the apartment against the wishes of the occupants. It comes into play only if he entered the premises on their invitation or with their consent.
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A. Xuereb
Jan 6th, 12:11
What if you invite someone to your home and in the course of a conversation that someone turns violent and there is an imminent threat to your lifeWhat does the law say in these cases?
Marius Zulgis
Jan 5th, 18:54
@Annika Vaisanen
The last thing we need in this country is misguided political correctness and more bleeding hearts. Look what happened to Tony Martin in the UK if you want to see justice gone awry. A person must have the right to defend his property and his family from criminals. I agree that there must be proportional force but there are times when this is difficult to calibrate this and you need to base your (re)action through instinct. When you are protecting your family/loved ones against intruders (i.e. people who entered your property ILLEGALLY and should NOT BE THERE in the first place) then the onus of the outcome of these peoples' action should fall on them and not on the property owner/tenant.
Joseph Sammut
Jan 5th, 18:32
Was there a break in or not?
If the babies were in another room, how come they had blood stains (not in this article)?
joseph briffa
Jan 5th, 16:52
In these particular moments SILENCE IS GOLDEN.
D Psaila
Jan 5th, 16:43
This following news article is about a similar story that happened on New Year's eve as well. The mother asked 911 if she could shoot the intruder to defend her 3 month old baby. They gave her the go-ahead. When it comes down to a woman defending her babies, you would do everything - the story is almost similar to this one in some aspects.
http://news.yahoo.com/okla-woman-shoots-kills-intruder-911-operators-okay-091106413.html
S Vella
Jan 5th, 16:19
This is worrying. When no-one is aware (Except Claire Zammit Xuereb) of what really happened, why are we discussing these supposition. The title of the article "When the law justifies homicide" can be easily interpreted that as indicating an action was done, and this is your way out. let the police do their job and let us avoid speculation. Let us respect the families of these two victims.
Victor Pulis
Jan 5th, 16:19
X'jigri jekk jidhol halliel fil ghodu.Sid id dar ixarrablu daqqa ta' tagen u b'rizultat t'hekk il halliel imut l-ghada?
Mark Caruana
Jan 5th, 16:07
If this lady defended her husband from an assailant in their house we must contemplate on how to praise her not question if she is liable for punishment or not.
May this awful time pass quickly Claire and you'll move on with your life. We all have our bad patches in our life. Yes, yours was gruesome but God is there and he is alive. Have faith and you'll make it.
Michael Camileri
Jan 6th, 08:14
yes! I agree
Victor Zammit
Jan 5th, 15:36
To allay the minds of commentors below, self-defence is justified any time of the day or night according to Article 223 of the Criminal Code. According to Article 224 lawful defence now, not self-defence, is justified any time of the day or night. Night time is concerned where homicide or bodil;y harm is committed in the act of repelling entry into premises. Otherwise any attempt at breaking into premises justifies homicide or bodily harm any time of day or night. Your guess why the law distinguishes between repelling at night and preventing attempted break-in during day or night is as good as mine. In this case it is Article 223 that applies not Article 224.
Annika Vaisanen
Jan 5th, 16:31
True but law is much more elaborate than that. One must start off by saying that a defence must be legitimate and not only self defence. And there is a list of certain criteria for legitimate self defence.
Section 227. of the criminal code states that wilful homicide shall be excusable -where it is provoked by a grievous bodily harm, or by any crime whatsoever against the person, punishable WITH MORE THAN one year’s imprisonment.
So if someone merely hits you, would would not be able to claim self defense if you act out of proportion and kill them. However our criminal code, wisely goes on saying that if a person is in excess of legitimate self-defence caused due to the suddenness of the danger confronting him, fear or fright he shall not be liable to any punishment. So the circumstances of each case are taken into consideration.
Having said that, IF THE THREAT IS NOT DIRECTED TO YOU ( YOUR BODY ) BUT IS DIRECTED MERELY TO THE PROPERTY YOU WILL NEVER BE JUSTIFIED FOR HOMICIDE OR BODILY HARM.
Victor Zammit
Jan 5th, 17:24
@Annika Vaisanen
Yes, but Article 227 is about excusable homicide. Article 223 is about justifiable homicide, i.e. where no offence at all is committed in inter alia lawful self-defence.
And again the “repelling” of Article 224 is repeated in Article 227, but this time also during day-time. So both self-defence and lawful defence of Art. 223 and Art. 224 respectively, and wilful but excusable homicide’ of Art. 227 are covered any time of day or night seven days a week.
The report is misleading in that it puts together lawful defence and self-defence under Article 224. It is this application of the law that is wrong, not the law.
Annika Vaisanen
Jan 5th, 18:22
@Victor Zammit yes that is the problem in this article, that it makes it sound like one would only be allowed to defend himself from an agressor at night. In fact you are always allowed to defend yourself (or an another person) from physical violence or defend chastity, day or night AS LONG as the threat is unlawful, grave, immediate, sudden etc. It does not matter if you are at home or outside home, you have a right to defend yourself. And again as long as it is proportional to the attack and absolute so that you had no way of running away or escape.
Now, the law differentiates between defence at day and night when someone is breaking in to your apartment. However here is the second point that this article gives a wrong impression about. If the threat is not directed to a person but is directed to a property then you might never be completely exempt from liability for homicide or bodily harm, under Maltese law. Eg. the neighbour's little boy will climb over the fence to steal apples. Would it be right to kill him? Mere interference of property will not usually justify the homicide or a bodily harm: such a justification will not arise unless the interference amounts to a crime which is violent, such as theft with violence or plunder, or which takes place under such circumstances as to raise a reasonable apprehension of danger to life or personal safety.
Marius Zulgis
Jan 5th, 15:30
Who wrote this law? Surely a homeowner/tenant has the right to defend his/her property irrespective of the time of day. A home invasion can take place during the day and burglars are not constrained by time limitations - so why should homeowners/tenants be?
Annika Vaisanen
Jan 5th, 16:13
Mere threat to one's propert does not give one grounds for self defence. The evil must threathen your or other person's life. In case of legitimate self defence, the self defence must be PROPORTIONAL to the situation. One can not shoot or knife someone just because they hit you. If law would not give any limitations, people would be killing each other on a daily basis without any precautions.
Emma Xerri
Jan 5th, 17:16
This law was probably written by Napoleon or some ancient Roman. Most of the code laws comes from that time.
Yes, I agree that the time of day or night is supperfluous, and maybe these laws should be revised for the modern era.
Ms Jessica Spiteri
Jan 5th, 15:29
Only at night????? wth!?! So if you're attacked in the morning and you kill someone to defend yourself, you go to jail?
John Caligari
Jan 5th, 15:17
Gbajna niddefendu certu nies. Dan kaz serju. Diga rajna dawn l-argumenti fuq TVM. Dan ghax f'tas-Sliema jew ulterjuri ohra? Ahjar nitolbu ghal erwieh tal-mejta, minflok ingibu dawn l-argumenti u mmorru Bondi+.
Zagroma Savrene
Jan 5th, 15:05
The law should be the same as it is in America....if someone breaks into your house uninvited, you have the RIGHT to kill the intruder to protect yourself any time of the day. It's completely the right thing to do and is how it should be. Citizens have the right to defend their life against armed intruders, and their family's, using ANY means (including shotguns and other guns like in the USA).
Michel Bencini
Jan 5th, 16:15
Trust me, you do not want to be like the USA. Everybody has guns. No one is safe. Anybody can justify killing anybody. The schools have metal detactors. Just yesterday an elementary school kid was shot at by police because he carried a pellet gun.
Joe Buttigieg
Jan 5th, 15:03
is the below paragraph correct? we can only use self-defence if the person entered my building with my consent?
The use of excessive self-defence does not come into the picture if Mr Gera obtained access to the apartment against the wishes of the occupants. It comes into play only if he entered the premises on their invitation or with their consent.
S. Camilleri
Jan 5th, 14:07
What a ridiculous law ... So I better set my clocks right at home just in case I get burgled and need to defend myself.
Now that would be a good idea. Put a sign 'Burglaries only allowed at night ... so you can be knifed/shot/burnt/kicked/electrocuted etc'. Plain silly.
Pierre Mangion
Jan 5th, 14:57
Dear S Camilleri,
the only thing which is silly is the time bracket and nothing else. this should be expanded further to cover the whole course of the day & night.
self defence and protecting one's life and property, should not be up for discussion. anyone seeing someone trying to trespass their property will do any attempt to stop the individual. that could be by informing security/police, making loud noises, or (and unfortuntely) using violence.
S. Camilleri
Jan 5th, 16:05
@Pierre Mangion... If you read carefully what I wrote it is clear that I was ridiculing the 'time bracket' aspect of the law and not the law per se... so yes I agree with you.
Incidentally I just came across this in the international media ... where the victim sort of checked her legal standing before actually firing!
http://edition.cnn.com/2012/01/04/justice/oklahoma-intruder-shooting/index.html
B Attard
Jan 5th, 13:56
Although I don't know Claire personally,I feel very so sorry for her. May God be with her every second of her life.
E. Azzopardi
Jan 5th, 13:49
Can the authorities enlighten the citizens what happens if one finds an aggressor with a knife, say at 1300 hrs? So, if one defends himself at this time and kills the aggressor, what happens? Does he go to jail? What is the problem with daytime? Or one will let the aggessor do what he wants and let him leave, or better still one has to be careful not to harm the aggessor? Very contradictory indeed. We need an answer on this one, because nowadays strangers are going into residences at all times of the day?
Mark Anthony Sammut
Jan 5th, 13:36
You have the right to defend yourself from violence even at day-time according to article 224 (b). Article 224 here in full:
224. Cases of actual necessity of lawful defence shall include
the following:
(a) where the homicide or bodily harm is committed in the
act of repelling, during the night-time, the scaling or
breaking of enclosures, walls, or the entrance doors of
any house or inhabited apartment, or of the
appurtenances thereof having a direct or an indirect
communication with such house or apartment;
(b) where the homicide or bodily harm is committed in the
act of defence against any person committing theft or
plunder, with violence, or attempting to commit such
theft or plunder;
(c) where the homicide or bodily harm is imposed by the
actual necessity of the defence of one’s own chastity or
of the chastity of another person.
victor caruana
Jan 5th, 12:56
Who has determined that Gera broke into the premises?
Steve Attard
Jan 5th, 12:28
U jekk jidhol xi hadd jisraqni go dari u nkunu qed naqilbu is sigha x jigri!!?? LOL...
R Malia
Jan 5th, 12:19
And the laws are written by the most educated people but are the ones with the least common sense.
John Spiteri
Jan 5th, 14:05
So true
A. MICALLEF
Jan 5th, 11:58
Din ghandha isservi ta ezempju. Min jidhol f-dar haddiehor sabiex jghamel xi tip ta crime,
l-okkupant ghandhu jkollu driitt u DOVER li jiddefendi lilu nnifsu, il-propjeta tieghu u
specjalment lil familtu. B-KULL MEZZ U 24 SIEGHA KULJUM.
Franco Abela
Jan 5th, 11:33
tajba.... mela issa qed nghaddu messagg lil hallelin biex jidhlu fid djar matul il gurnata ghax is sidien m'ghandomx dritt jiddefendu ruhhom fil ghodu!
Mela jekk inkun id dar u jidhol xi hadd fuqi filghodu b sikkina ikolli jew inhallih jaghmilli li jrid u joqtolni jekk hemm bzonn jew noqtlu jien u nehel il habs!
tajba!
Roderick Camilleri
Jan 5th, 12:02
what about if infact the assinated person would be a guest and not an intruder, does the self defence law still applies? How does one assume that if a person is in someonelse`s house is infact an intruder?
This is just cheap gossiping, but thousand of cheap comments have been made so far, i just want to make on in an opposite direction.
Franco Abela
Jan 5th, 12:39
@ Roderick
The use of excessive self-defence does not come into the picture if assailant obtained access to the apartment against the wishes of the occupants. It comes into play only if he entered the premises on their invitation or with their consent.
Mario Borg
Jan 5th, 12:42
@ Roderick Camilleri,
The answer to your question is in the article.
Michael Bugeja
Jan 5th, 13:28
Proset Franco ,well said, Il-ligi ghandha tkun toghodd kemm ghal filghodu u kemm bil lejl, insomma ligi ta nofs kedda.
m borg
Jan 5th, 11:23
So what if there will be shooting or an attack in a school or a supermarket obviously during the day ... people can't defend themselves?!!! There are no appointments to defend yourself or others.
Matthew Grima
Jan 5th, 16:47
Really Carmel? So I should carry an officer around with me?
G A Bonello
Jan 5th, 11:13
Most famous case in the UK was Tony Martin
Anthony Edward "Tony" Martin (born 1944) is a farmer from Norfolk, England, who in 1999 killed one burglar and wounded another who had both entered his home. He was convicted of murder, replaced with manslaughter on appeal, and as a result became a cause célèbre, and polarised opinion in the United Kingdom.
full details here http://en.wikipedia.org/wiki/Tony_Martin_(farmer)
John Micallef
Jan 5th, 12:45
Thanks for mentioning that UK case. The first time I read about it was on a rock singer's website.
He even made his 'parody' of the case...you can read it here http://www.gillan.com/friends35.html
...and also mentioned him here:: http://www.gillan.com/friends28.html
Cheers.
J
K Bonello
Jan 5th, 11:09
I like the fact that in this article we are questioning if or if not there was a break in....
Tony Borg
Jan 5th, 11:07
http://gma.yahoo.com/video/news-26797925/oklahoma-mother-18-kills-intruder-breaking-into-her-home-while-on-phone-with-911-27777235.html
Watch this video and put in your comments to make our law the same as US.................
Tonio Farrugia
Jan 5th, 10:57
what's this thing about night?!?!... so if someone breaks into my house at midday and tries to kill me, i cannot defend myself and my family?.
Michael Hudson
Jan 5th, 11:28
Exactly my thoughts. Probably I think it's one of those things of ONLY IN MALTA.
C Muscat
Jan 5th, 10:50
If I remember well, the robber being killed as he entered on the jeweller was never arraigned in court. This will be in all cases of intrusion to private residence and it is only justice to have criminals receive what is due. So in my opinion, even in case the wife defended her family, no need to arraign in court; and we will still be within the law.
Keith Balzan
Jan 5th, 10:39
http://gma.yahoo.com/video/news-26797925/oklahoma-mother-18-kills-intruder-breaking-into-her-home-while-on-phone-with-911-27777235.html......thats how the law should be.!!!!
Charles Grima
Jan 5th, 10:34
6.15 is NOT night.... It is morning.... regardless of being pitch-dark or not! So it would be alright to defend yourself in winter but not in summer?
What idiocy is this? Anybody should have the right to defend himself i his/her home.
I know what I would do, and it would not involve sweets or pillows!
E Camilleri
Jan 5th, 10:53
Fair enough, I would do the same.... But in the eyes of the law, daytime is any hour between sunrise and sunset... And on the morning of 1st January 2012- sunrise was at 7.12am so yes, the time the offence took place is deemed to have been committed during the night- so article 224 would most definitely apply- especially if they were asleep!
Also, a lot of technicalities come into play if it was committed during the day: such as if it was sudden, just, provoked, necessary, avoidable etc etc. The facts of the case always play an important role. And punishment (or not) is calculated accordingly!
Dave Bonnett
Jan 5th, 10:28
If one breaks in from sunrise to sunset it would be an excusable homicide...
Alan Xuereb
Jan 5th, 10:42
I think you mean sunset to sunrise!
E Camilleri
Jan 5th, 10:55
No he means sunrise to sunset....
Sunset to sunrise ie. night is justifiable.
Sunrise to sunset ie. day is excusable
Dave Bonnett
Jan 5th, 13:07
Yes that's what i meant!
E Camilleri
Jan 5th, 10:26
Article 227 (b) of the criminal code provides for similar occurrences during the day time :
"where it is committed in repelling, during the day time, the scaling or breaking of enclosures, walls or the entrance of any house or inhabitant apartment..."
The only difference is that whereas during the night time, one would be exempt from liability since it is a justifiable homicide..... During the day would be a case of EXCUSABLE homicide and not completely justified. The reason is that one is more helpless at night time and there exists the element of confusion if one were asleep.
Although there indeed involves a punishment for an excusable homicide, this is minimal- and is not more than 2years imprisonment. ( unless it was a crime of passion... Where the punishment ranges from 5-20years imprisonment)
Franco Abela
Jan 5th, 11:38
still why does one have stay 2 years in prison for defending himself? not even 1 week let alone 2 years away from family, loss of job, etc... for defending yourself from an aggressor!
E Camilleri
Jan 5th, 12:03
In my response to Charles Grima above I explained that there could in fact still be no punishment at all. If a homicide is committed after a person breaks into your home during the DAY- one is excused, and the maximum punishment can only be 2 years. However, if after analysing the facts of the case it results that the owner was taken by surprise, did not anticipate the breaking in, did not provoke the intruder, did not go after him, and did all that was necessary for self defence without exceeding the limits of law- then im quite sure no punishment would be given!
Again- it all boils down to the facts and merits of the case in question as no one case is identical to another!
E Schembri
Jan 5th, 13:29
"This is minimal- and is not more than 2years imprisonment."
In Malta 2 years is a hard punishment considering that most of our toughest criminals get away with bail and a max of €2000 personal guarantee!!!
To get 2 year prison you must have either done something very very bad or caught with drugs.
R. Gauci
Jan 5th, 10:25
Din tista tinteressa lil min qara l-artiklu:
http://www.globalpost.com/dispatches/globalpost-blogs/weird-wide-web/teen-mom-oklahoma-911-kill-intruder-dead-12-gauge-shotgun
I Bugeja
Jan 5th, 10:23
Dear Claire, irrispective of all the hype being built up by local media, I sincerely this is over and done with as soon as possible. It takes a strong person to cope with all this. May you find solace from those who really love you. My thoughts go to all relatives of both families who I am sure need time and space as well to cope with their loss.
J. Camilleri
Jan 5th, 10:18
tajba ukoll!
mela tkun id-dar filghodu migbur id-dar mal-familja, jidhol hi hadd fid-dar privata tijek, biex jew jisraq jew ma jafx jaghmel u jekk tidefendi ruhek u forsi toqtlu jew tamilu xi haga, tehel int!!!
jien fil-ligi miniex espert, anzi ma nifhem xejn. Pero jien nahsiba li jekk xi hadd jidhol go darek bl-intezjini li jaghnel xi haga hazina, andek kull dritt tidefendi ruhek, u jekk tigik tajba tohrog haj... u mhux tehel il-habs ghaliex idevendejt ruhek go darek stess!!
Charles W. Sammut
Jan 5th, 09:32
"Article 224 of the Criminal Code specifies that if a homicide, or bodily harm, occurs at night and involves the victims breaking into the property, then no offence would have been committed."
Why only at night? Would the occupant of a house be expected to remain passive if the forced break-in occurs in daylight?
"Dear intruder can you please come back later, during the night, when it would be lawful for me to kill you?"
tom berg
Jan 5th, 10:06
My thoughts exactly...
Andreas Moser
Jan 5th, 10:29
Maybe you are supposed to call the police during the day?
Franco Attard Trevisan
Jan 5th, 10:37
exactly!
Alan Xuereb
Jan 5th, 10:41
Only in Malta? Is there someone who can tell us if there's any other country with laws like ours?
Mariano Camilleri
Jan 5th, 11:05
@alan xuereb... law in uk is worse...you cant touch an intruder in your house unless he does something to you and you defend yourself. if he doesnt you have to let him rob the house...if you do even touch, hurt him you get arrested and sent to prison for doing it...the law is under way to be changed in uk but at the moment this is how it is. if you defend your house you get done for it. so malta is not that bad as law altough it needs some changing
http://www.securedhome.co.uk/jailed-for-defending-home.html
Annika Vaisanen
Jan 5th, 13:31
@charles sammut
Because one is more vulnerable at night time. During the day would be a case of EXCUSABLE homicide and not completely justified. Excusable is when a person is deemed to be excused because of a ‘certain circumstance’ and the punishment is MITIGATED although the person is still found guilty or that offence.
On the other hand, Justifiable offence as in the case of self-defence at night time, the person is not held to be criminally responsible and thus not exposed to any punishment.
One must remember however that the evil must be grave, and threaten one's LIFE.
The threat to one's property would not give basis to claim self defence.
The self defense must also be PROPORTIONAL to the attack. Therefore if someone hits you with a fist, you would not be justified to hit them with a knife or shoot them.
Annika Vaisanen
Jan 5th, 13:59
@charles sammut
Because one is more vulnerable at night time. During the day would be a case of EXCUSABLE homicide and not completely justified. Excusable is when a person is deemed to be excused because of a ‘certain circumstance’ and the punishment is MITIGATED although the person is still found guilty or that offence. But in reality the punishment would be only minimal. On the other hand, Justifiable offence as in the case of self-defence at night time, the person is not held to be criminally responsible and thus not exposed to any punishment. One must remember however that the evil must be grave, and threaten one's LIFE. The threat to one's property would not give basis to claim self defence. The self defense must also be PROPORTIONAL to the attack. Therefore if one hits you with a fist, you would not be justified to hit them with a knife or shoot them.
Annika Vaisanen
Jan 5th, 18:27
The problem in this article, that it makes it sound like one would only be allowed to defend himself from an agressor at night. In fact you are always allowed to defend yourself (or an another person) from physical violence or defend chastity, day or night AS LONG as the threat is unlawful, grave, immediate, sudden etc. It does not matter if you are at home or outside home, you have a right to defend yourself. And again as long as it is proportional to the attack and absolute so that you had no way of running away or escape.
Now, the law differentiates between defence at day and night when someone is breaking in to your apartment. However here is the second point that this article gives a wrong impression about. If the threat is not directed to a person but is directed to a property then you might never be completely exempt from liability for homicide or bodily harm, under Maltese law. Eg. the neighbour's little boy will climb over the fence to steal apples. Would it be right to kill him? Mere interference of property will not usually justify the homicide or a bodily harm: such a justification will not arise unless the interference amounts to a crime which is violent, such as theft with violence or plunder, or which takes place under such circumstances as to raise a reasonable apprehension of danger to life or personal safety.