“I cannot accept that culpability can be graded according to locality – provocation that should be taken lightly in Sliema, would then justify attempted murder in Mellieha”
Tuesday 16 October 2012 - 09:11 by Miriam Dalli
Giovanni Bonello - I can never accept that persons escape responsibility for their actions, ‘because others make them behave like that’
Malta's former judge at the European Court of Human Rights issued a scathing judgement of his own at a ruling by Magistrate Carol Peralta that a man who ran over a tourist who implied he was gay, was justified in his action.
"The Court has no business fanning and pandering to a culture of violence," Judge Giovanni Bonello (pictured) said of the conditional discharge for a Mellieha resident whom Peralta felt was justifiably defending his honour when he ran over a drunken Australian tourist who had irked him at bar, a few hours before the incident.
The man was facing charges of attempted murder.
Bonello also questioned how something that is not illegal, could be deemed to be offensive or to justify violent behaviour.
"If any sexual orientation is fully protected by law, I find it difficult to see how being accused of having a sexual orientation protected by law can be deemed to be so offensive that it excuses grievous and permanent bodily harm," the retired judge argued.
Peralta let Alan Gauci, 36 of Mellieha, off the hook after admitting to causing permanent disability to an Australian tourist in 2004. Gauci deliberately ran over his victim in a car after being called "gay" by the Aussie.
The court noted that Gauci had been provoked into reacting the way he did, with Peralta saying that the accused - who claimed in court to have acted in "defence of his honour" - "lives in Mellieha and, in his psyche, had a reputation to defend in his village. The incident happened in Mellieha, and before fellow villagers, so the insinuation that the accused was 'gay' - even if there is nothing wrong with that - perhaps in the accused's psyche and other villagers' was not acceptable."
But Bonello has told MaltaToday that various aspects of the story confused him.
Though admitting he only read the press reports of the judgement, he noted that the magistrate was better placed to evaluate the evidence and the circumstances, than outsiders who get their information abridged and second-hand.
"However I am puzzled by various aspects of this story. I can never accept that persons escape responsibility for their actions, 'because others make them behave like that'," Bonello said.
He argued that such arguments were raised in rape cases, where women would be accused of having provoked the attack because they wore miniskirts. He said that such defence was "particularly loathsome".
"I neither could accept that culpability can be graded according to locality - provocation that should be taken lightly in Sliema, would then justify attempted murder in Mellieha."
The ruling was not only also received with consternation by the general public but also by the coordinator of the Malta Gay Rights Movement (MGRM) Gabi Calleja.
"While the accused might have felt that being called gay was an insult to his manhood and damaged his reputation, the message that the court is sending by this sentence is that homophobia is to be condone rather than challenged," Calleja told MaltaToday in last Wednesday's edition of MaltaToday.
"Irrespective of where the accused was from, the reaction was disproportionate to the harm suffered. Magistrate Peralta's sentence justifies taking the law into one's own hand, something with I believe goes contrary to the basic role any member of the judiciary - upholding the rule of law."
Magistrate Peralta - a former freemason - had left 283 pending magisterial inquiries when he was appointed in 2005 as an international judge presiding over war crime trials in Kosovo.
In 2001, then justice minister Austin Gatt told the House that Peralta was one of several magistrates who refused to have his pending caseload of magisterial inquires publicised in the House - something Gatt had publicly criticised.
In comments he gave on breakfast show TVAM earlier this year, Peralta said it was "physically impossible" for him to deal with the pending inquiry caseload, because these inquiries were pending further compilation by court experts.
Peralta also played down his former connection with the Leinster freemasons' lodge. "I would not say it is much of an accusation... being part of an association of some four million people, an association that has championed the freedom of thought, an association that has included world statesmen? It's not exactly an accusation."