Human rights ‘concerns’ over father’s prison term
Man jailed after he failed to pay maintenance when he was unemployed
The imprisonment of a man who did not pay maintenance to his ex-wife because he was unemployed raises human rights concerns, according to legal experts in the field.
Although the law allows the imprisonment of people who fail to obey a court ruling, such as a maintenance order, according to case law this did not apply when the person could not afford court-imposed payments, explained Giovanni Bonello, a former judge within the European Court of Human Rights.
“The imprisonment of a person who is not in a financial position to pay a debt can never serve ‘to secure the fulfilment of an obligation’, but to punish and degrade the debtor – which the (European) Convention simply does not countenance,” Dr Bonello said.
The Sunday Times reported the story of David Muscat, a 52-year-old father of three who has been jailed for a month for not paying maintenance for four months, during which time he was unemployed.
The newspaper saw documents issued by the Employment and Training Corporation showing he had been made redundant. He has since found a job.
Mr Muscat said he did not have the money to appeal the jail term and to date he was waiting for the police to knock at his door to take him to prison to serve his sentence.
Dr Bonello said what really concerns him about the case were the human rights aspects of Mr Muscat’s predicament, independently of the merits of his wife’s claims.
He pointed out that he happened to know Mr Muscat but never represented him during matrimonial litigation.
Dr Bonello said according to Protocol 4 of the European Convention on Human Rights, people could not be imprisoned for the non-payment of any civil contractual debt.
“I believe it could be argued that alimony is a debt arising from the contract of matrimony, enforced by a court judgment,” he said.
The Convention, he said, allowed the imprisonment of a person to secure the fulfilment of any obligation prescribed by law, which would include maintenance.
“But the case law of the Strasbourg Court has, wisely in my view, explained that such imprisonment would only be lawful if it is proved that the debtor had the means to fulfil that obligation and still failed to do so,” he said.
Human rights lawyer Therese Comodini Cachia agreed with this line of reasoning.
She said it was of utmost importance for the courts to ensure that parents paid their maintenance.
“But putting parents in prison when they have failed to pay maintenance because they could not afford to does raise questions under the European Convention,” she said.
It was the civil court that determined the amount of maintenance due. That same court could be asked to change the degree if circumstances changed.
Sometimes people followed this procedure but, at times, parents thought it was obvious that maintenance could not be paid and ignored the decree.
“We may need to strengthen our position to ensure that while maintenance obligations are respected, the rights of those parents who have a valid reason are not violated.
“In this respect, we will need to ensure that the civil courts consider all evidence that may be produced to prove a change in circumstances and for that parent to be allowed full access to court in this respect,” she said.
Dr Comodini Cachia said the criminal court should also use its discretion and consider evidence that maintenance could not be paid for reasons beyond control.
Constitutional lawyer Ian Refalo thought the situation was not so clear cut.
While Protocol 4 abolished imprisonment for civil liabilities, maintenance was not considered a purely civil affair since it was an offence related to the non-observance of a court order.
For Prof. Refalo, being jailed for not paying maintenance, due to financial constraints, could be a breach of human rights but this was debatable.
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ADRIAN WARRINGTON
Nov 21st 2012, 17:01
It is about time that the laws of Malta changed. I myself have been in this same exact situation, were i was sentenced to 1 month prison, and i too was unemployed. I had to run away from Malta in order not to serve my sentence. I had to give up all I had, my family, my pets, my belongings, everything, and run to a foreign country, were i had nobody, nothing.
Lino Maniscalco
Nov 15th 2012, 06:43
The next thing will be the law of co-habitation. It will be another lethal weapon for women against men as is happening in other western countries.
wayne scicluna
Nov 14th 2012, 21:04
No presidential pardon here.....could it be because the person in question is male?
R. Borg
Nov 14th 2012, 20:38
All we hear on the media are equality rights for women. I think it's about time for us to voice out in public our concern towards similiar injustice and gender descrimitation. Men have been suffering for too long in silence. It goes without saying that in most cases, the courts tend to balance towards the women's side. A sort of organisation is needed to petition against this ridiculous situation.
Bill Khan
Nov 14th 2012, 19:00
Absurd. Totally absurd. How is the society served by all this? How do the children benefit from this?
The mother of the children perhaps can have her pound of flesh but other than that the whole thing is utterly absurd and serves no purpose.
anthony sultana
Nov 14th 2012, 18:05
Men under this policies , marriage has become very woring, so stop the marriage business until policies are change.
R. Borg
Nov 14th 2012, 20:18
Hekk hu, m'hemmx triq ohra fil mument
Ruth Muscat
Nov 14th 2012, 16:23
and we say that the law is just... bah..
Kirsty Vidal
Nov 14th 2012, 15:01
This is stupid. He needs to get a presidential pardon for sure. How the heck they pretend (including the wife) to pay up if he is unemployed. To make things harder for him he is sitting in jail and his police conduct is now not clean, so he gets a decent job. WELL DONE! You just ruined this man's life!
Mrs Maria Rosaria Brincat
Nov 14th 2012, 14:39
Hafna rgiel meta jkollom l inkwiet fiz zwieg u jitilqu mid dar jieqfu mil impieg li jkollom u jsibu mpieg iehor min taht biex ma jmantnux lil mara u tfal.
Louis Muscat
Nov 14th 2012, 19:11
Hafna nisa metta jixbaw fil hajja mizzewga jitolbu is-separazjoni, halli ikunu jistghu jergaw jibdew jghejxu il-hajja ta' xbejbiet .
r buttigieg
Nov 14th 2012, 19:32
if a woman has a choice to work or stay at home so does a man..a husband is not a free meal voucher
R. Borg
Nov 14th 2012, 20:17
Hafna nisa waqt iz zwieg igergru ghax ir ragel iqatta hafna sieghat jahdem biex jipprovdi hajja dicenti ghal familja tieghu, biex l ewwel wahda hi toqghod issahhan is siggu id dar, Meta jfettilla ghax ' miskina" thossa traskurata taqbad thawwad l hemm u l hawn u wara is separazjoni tipperetendi li izzomm it tfal u jmantniha wkoll, biex ma nsemmux li tippretendi izzomm id dar wkoll. Hallina minnek
Matthew Grima
Nov 15th 2012, 12:36
If you really want your equality you should have equal responsibilities. Go out and work.
George Busuttil
Nov 14th 2012, 14:10
This is not an isolated case. I have met a man in prison for the ninth time because he could not pay due to his not being employed. To make matters worse he was even expected to pay for the time he was in prison while his wife was enjoying the use of their matrimonial home, of which he owned half, and refusing to sell the same house.
George Busuttil
Fondazzjoni Mid-Dlam ghad-Dawl
R. Borg
Nov 14th 2012, 20:10
It's incredible that men are suffering all this in silence when all we hear on the media is equality rights for women. Are there any institutions that can help men in similar situations ?
Pauline Thompson
Nov 14th 2012, 13:33
Ok so a man who is unemployed and didn't keep up with maintenance payments has been served with a prison sentence - although he is not a danger to the public. Yet a man who delibrately ran someone over - his defence was that he was "provoked" he received a conditional discharge. Is this for real? How can the court be taken seriously.
John iNGUANEZ
Nov 14th 2012, 13:28
Let's hope now someone goes protesting infront of the prison and someone petitions the President> Oh I forgot he is a man.
Brian Gatt
Nov 14th 2012, 13:16
I am all in favor that women should have Equal Rights as men, I know that there are still some male shovinists that still think that they own their women etc and that is Absolutely Wrong. However the Power women are obtaining day after day is frightening. Women now have the upper hand in many life situations, and some are using this to the detriment of their partners. Tables have turned
DR EMMANUEL BEZZINA,MA,MAG.JUR.[EU Law],LL.D.,
Nov 14th 2012, 13:05
When we witness ever escalating maintenance amounts often incorporating sums that are not included in the legal definition of maintenance,then it is high time to have the situation controlled.Mothers & Wives are ever abusing in this matter.Thus one of the reasons why the Family Court should be restructred to satisfy a transparent justice. Maintenance Money should be just that, no more.
R. Borg
Nov 14th 2012, 20:29
Dr. Bezzina, is there a way for men perhaps through an organisation or an association of some sort to voice out their concern about this abuse / injustice ? All we hear on the medial are equality rights for women, but I think its quite clear that men are the injured party here and it should be the men that must call for equality rights.
DR EMMANUEL BEZZINA,MA,MAG.JUR.[EU Law],LL.D.,
Nov 14th 2012, 12:58
No individual should ever be sent to the correctional facilities simply because maintenance has not been paid. Abuses are rampant in this particular are of the Family Criminal Court as it has come to be indicated. The presiding Magistrate who is extremely patient and most tolerant no doubt sees these on going abuses especially by the main beneficiaries, normally women who are repeaing all.
Alfred Clottin
Nov 14th 2012, 12:01
In this case there must be more than betterness between parties and for the sake of the children the Father or Mother will serve no purpose sitting in jail without income - we all know that in jail you always get three meals a day. Who's the looser.
Mr vinny vella
Nov 14th 2012, 11:53
Presidential Pardon ???? Very unlikely, he's a man !
Paul Azzopardi
Nov 14th 2012, 11:49
Why doesnt the system help him instead of cruxifying him and send him to prision as if he was a criminal???? Why dont they help him to find a job... to REALISTICALLY help him support paying the maintanance and give him a decent single life????To help him regain some pride. Why not help instead of Ruin him like so many men who never had help or been understood???
r buttigieg
Nov 14th 2012, 11:42
Women should be oblidged by law to provide for the children. In divorce or seperation staying at home should not be an option.
Elaine Compagno
Nov 14th 2012, 23:29
In divorce/sep, women already provide for their children. They provide 24/7 care. Many women would kill to be able to go out to work and earn a decent living to be completely free of their ex husbands, but since they have these beings called children, you know.. those short noisy people with buggers and nappies, they cannot get on with life like they were single again. It's the men who can do that
Anthony Paul Naudi
Nov 14th 2012, 11:30
A presidentiol pardon for this man too, otherwise women have rights more than men.
A.P.Naudi
stephen mifsud
Nov 14th 2012, 11:25
marriage is a trap for men under the present laws which favour woman when it comes to divorce even if its the woman thats want to break the marriage up ???
R. Borg
Nov 14th 2012, 20:01
Well said. 85% of seperations are initiated by women and 70% of these 85% marriage breakups are extra maritial affairs from the women's side according to a recent european study.
Charles Miceli
Nov 14th 2012, 11:21
Please always remember that in Malta we do not have prisons but a CORRECTIVE FACILiTY. I am not sure if Mr Muscat needs any correction as to my mind he would do much better if he was offered a job. It seems that the only solution we have when we are with our back to the wall is to send people to the Corradino Hilton.
Mark J. Magri
Nov 14th 2012, 11:19
This is all injustice!
I appeal to the Law Authorities to reconsider this and replace the jail sentence to nil.
This poor man cannot afford to have a decent living while he is unemployed,made one thinks
how can he afford to maintain obligations to the other party.
Equality must be shown either way.
GRANPINTO
Paul Azzopardi
Nov 14th 2012, 11:13
This should definately be another one for ''Xarabank'', in all fairness they should look at a man approach on going to prison and supporting a presidential pardon for David. I'm sure the president isnt to happy where the first step is leading to. You can't pardon one and not the other in my opinion.
mark johnson
Nov 14th 2012, 10:41
When he became unemployed he should have made a petition to the court to have his case re-examined due to the change in his financial circumstances. You have to be proactive in these cases.
Peter Bonello
Nov 14th 2012, 10:53
if you are unemployed, how can you pay for court expenses and lawyers???
mark johnson
Nov 14th 2012, 12:02
Legal aid is there to pay in such cases. Ignorance is no excuse.
laurent caruana
Nov 14th 2012, 12:09
petition to the court? Since when have the maltese courts accepted anything for free??
david debattista
Nov 14th 2012, 10:38
I am just the ordinary citizen But I think the law should always be enforced WITHOUT DOING VIOLENCE TO REASON ! In Malta at time it seems that either we do nothing or very little, or we over do it !
Paul Xuereb
Nov 14th 2012, 10:29
"... could not be paid for reasons beyond control". I'm not a legal person but legal matters interest me considerably. In this case, I would ask: what happens if a person cannot honour payments, such as in this case, because he is unemployed but had financial resources which he/she did not make good use of? In other words, how can it be proved that the "reasons were beyond control?"
Angelo Baldacchino
Nov 14th 2012, 10:28
where are graffiti now?
r buttigieg
Nov 14th 2012, 11:40
it's not a female, remember
Anthony Falzon
Nov 14th 2012, 10:25
Does the contract in marriage state that the husband must maintain the wife for the rest of her life??
Mark Tagliaferro
Nov 14th 2012, 11:21
Not necessary the husband pays the wife. If the wife earns more than the husband then the wife is to pay the husband alimony.
We hear more of husbands having to pay wives because there are more women who do not work than men in Malta and I believe statistics show they earn less in general.
Divorce does not absolve one from this obligation either.
Jeffrey Mallia
Nov 14th 2012, 11:43
no
JIMMY ATANASIO
Nov 14th 2012, 13:19
exactly my point.she is no longer maintaining him or his needs so why should he keep payint to maintain her.it's not fair for the husband.now adays where both partners work there should not be any maintanance for either party exept ofcourse where children are involved.
anthony sultana
Nov 14th 2012, 10:19
Always the men is the problem,well in this case men must think 100 times before getting married, because 65% of married men are going to face the court,divorce it's not a joke.
r buttigieg
Nov 14th 2012, 11:48
if men stop and reflect for a moment, with brains and not emotions they will soon realise what is at stake before getting married as chances are that as a male you loose your children and be faced with alimony costs for a good portion of your life.
R. Borg
Nov 14th 2012, 19:55
Exactly, well said
John Scerri
Nov 14th 2012, 10:13
Are there cases where women pay maintenance to their ex husbands?
Are there cases where wives never bothered to go to work and acted as parasites off their husbands wages and now want their husbands pension as well?
I honestly think it's one way traffic here .
There is no equality since it is nearly always the women who are considered the victims .
Raymond Borg
Nov 14th 2012, 10:31
About time men start fighting for equal rights I guess!
Paul Azzopardi
Nov 14th 2012, 10:44
That's food for thought Mr Scerri, well said...unfortunately its equality when it suits women. I/we know of Many women that budge men of their money some even purposely marry them for it....when divorce happens its literally a battle field with the ex wife normally having made quite a good investment and collecting the spoils with the help of a confused justice system and an expensive lawyer.
Mr Adrian Vella
Nov 14th 2012, 13:53
automatically considered as victims!!!!
R. Borg
Nov 14th 2012, 19:53
Is there a form of an association / organization for protecting men's rights ?
John Cutajar
Nov 14th 2012, 10:04
Prison for this father? Better they helped him to find a decent job to be able to pay for child care... I really cannot believe certain laws here in Malta..
Raymond Borg
Nov 14th 2012, 10:33
As if being in prison is helping the father to support his family!
Peter Bonello
Nov 14th 2012, 10:54
exaclty
Paul Azzopardi
Nov 14th 2012, 09:28
I cannot see why this is so mind boggling ..If a Father is not working isnt it obvious that he cannot pay maintenance especially if its proven that he was made redundant, for that same reasoning since we are so hot on equality if a woman can work why doesn't she contribute to maintenance. Why is it OK for the man to go to prison and there is no group protest being held defending Mr Muscat ???
Jay Oatmon
Nov 14th 2012, 09:54
The problem is some men will decide to dump their job just to avoid paying maintenance.
Ruth Seychell
Nov 14th 2012, 10:55
but it wasnt the case here since it was proven that he was made redundant and since has found a job
Raymond Sacco
Nov 14th 2012, 12:14
There is no obvious in our courts Mr. Azopardi.
paul camilleri
Nov 14th 2012, 09:28
we demand that the president gives this man a pardon similar as he done to a woman or is this a case of discrimination!! because a woman was in jail , miskiena and because its a male halieh hemm ax haqqu, where are the protesters for this man i do not see any demostrations outside cordin like we saw for a female which i might add has again asked the president for a 2nd pardon!!!!
Steve Demicoli
Nov 14th 2012, 10:07
Agree wholeheartedly - smells like discrimination!
james baldacchino
Nov 14th 2012, 09:27
Issa did darba ragel wehel il habs mhux mara. Se jkun hemm mahfra presidenzjali jew??
Andrea Sammut
Nov 14th 2012, 10:15
Don't be ridiculous the cases are completely different! Chances are an appeal will be made by a benefactor and the man will get off unscathed. In the other case the woman's sentence had already been decided appeal and all!
paul camilleri
Nov 14th 2012, 11:15
Ms Sammut if you understand the written English word the man has already been inprisioned!!! and why is Mr Baldacchino being ridiculus?? isnt it true that the woman was released while she failed to follow the courts orders in making her sn visit his father? so what is this man doing that is so diffferant? he cant afford to pay maintenace so he is not following the courts order!!!!
R. Borg
Nov 14th 2012, 19:48
@ a sammut , the only thing that is ridiculous is your attitude towards this case. I can smell gender discrimination from 1000 miles away
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