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Res judicata and Legal Certainty

25 February 2013, Constitutional Court, Malta (Ref: App Civ 7/2011/2).

Keywords: res judicata and its elements - legal certainty


Appellant sought the re-opening of a case decided by the Courts about six years before, on the grounds that since then the European Court of Human Rights handed down a judgement (Salduz v. Turkey, on access to a lawyer as from the first interrogation) which indicated that his rights had been breached.

The First Hall Civil Court, in its Constitutional jurisdiction, (judgement delivered on 24 November 2011), rejected the case on the basis of res judicata, citing past case law:

• Anthony Aquilina v. Republic of Malta (15 October 2010) : ‘L-eccezzjoni tal-gudikat ghandha bhala sisien taghha, l-interess pubbliku, u hija mahsuba biex thares ic-certezza tal-jeddijiet li jkunu gew definiti f’sentenza u li tbieghet il-possibilita’ ta’  decizjonijiet li jmorru kontra xulxin’ (‘the exception of res judicata is based on public interest, and is intended to ensure the certainty of rights which are defined in a court judgement, and to ward off the possibility of conflicting judgements’);

• Pulizija v. Lombardi : ‘...m’ghandhiex ikollha effett retroattiv u taffettwa dawk id-decizjonijiet li llum huma res judicata’ (‘... cannot have a retroactive effect and affect those judgements which are now res judicata...’)

The Constiutional Court upheld the position of the First Hall, outlining the elements of res judicata, these being eadem persona (same person), eadem causa pretendi (same cause) and eadem res (same right). Once these three elements subsist, a judgement is definite. Were it not so, one could never achieve legal certainty. Developments in legal doctrine apply for the future and not retroactively: were it not so, all court judgements could be re-opened at any time, which would be completely unacceptable.

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