A res judicata provides judicial stability together with finality. However, the limits of a res judicata in contrast with a potential infringement of an individual’s fundamental human rights have seldomly been put to the test. In a recent judgment delivered by the Constitutional Court in the names of Emanuel Delia vs. Avukat tal-Istat et, the highest court of the land held that pronouncements that have gone on to become a res judicata may nevertheless be subject to a further layer of judicial scrutiny, specifically insofar as ensuring that the said judgment does not diverge from the guarantees of one’s fundamental human rights principles as laid down in the Maltese Constitution and the European Convention of Human Rights (“the ECHR”).

This judgment is the latest development in a series of cases filed in relation to a blog post which was published by Emanuel Delia in October 2019. In this blogpost, which targeted another fellow journalist, Delia had insinuated that Raphael Vassallo was working in tandem with the mafia by refusing to acknowledge its participation in the murder of a local journalist.

Raphael Vassallo felt aggrieved by the comments made in the blogpost and proceeded to institute libel proceedings against Delia, claiming that through this article, Delia was implying that Vassallo materially forms part of and was enabling a criminal organisation, that was effectively responsible for the said murder. After Vassallo proceeded to sue for libel, in its judgment, the Court of Magistrates discarded the allegations that Delia’s comments in his blogpost were libellous and therefore rejected Vassallo’s case on the merits. Vassallo went on to appeal that judgment, with the Court of Appeal (in its Inferior Jurisdiction) effectively overturning the Court of Magistrate’s conclusions and finding Vassallo’s claims to be merited. The Court had decided that the comments were defamatory and that their effect could have led to the suppression of Vassallo’s free expression. As a result, the said Court of Appeal ordered Delia to pay €1,000 in moral damages to Vassallo.

However, the saga did not end there. Delia felt that such conclusion reached by the Court of Appeal impinged on his fundamental human rights, and sought remedy by  filing a Constitutional case before the First Hall of the Civil Court, whereby he argued that the judgment handed down by the Court of Appeal against him constituted a breach of his fundamental right to exercise his freedom of expression, which right is guaranteed by virtue of Article 10 of the European Convention of Human Rights, as well as Article 41 of the Constitution of Malta.

The applicant argued that primarily the €1,000 fine imposed as a result of his libellous blogpost amounted to an unfair interference of his right to freely express himself. Delia further argued that the judgment constituted an illegitimate suppression of one’s right to criticise the state and/or its subsidiaries, and that no court should ever be in a position to dictate the manner in which one freely expresses his opinions.

Due to the fact that the nature of the proceedings were constitutional, the State Advocate, on behalf of the State had replied to the action by raising a preliminary plea in the sense that Delia could not avail himself of this special procedure (i.e. constitutional proceedings), as a means for the First Hall of the Civil Court to act as a court of review of decisions taken by the Court of Appeal in it’s Inferior Jurisdiction, and therefore to pass judgment on cases that have already been settled (res judicata).

In the First Instance judgment handed down on 6th October 2023, the First Hall of the Civil Court confirmed that the State Advocate’s plea was valid, with the Court observing that both the domestic Courts as well as the European Court of Human Rights (“the ECtHR”) itself have repeatedly stressed and acknowledged that human rights proceedings cannot be used to create courts of “third or fourth instance”. The First Hall consequently held that Delia’s grievances effectively amounted to a request for the Court to delve into the merits once again with regards to the defamation case filed by Vassallo.

Consequently, Delia’s application was discarded. This judgment was further challenged on appeal, whereby such appeal proceedings considered the decision with regards to the said preliminary plea raised by the State Advocate. The appellant (Delia) clarified that rather than a fresh interpretation of the facts and law, he was requesting the Court to declare whether the conclusions reached by the Court of Appeal were justified according to the parameters and criteria established under the ECHR, particularly in light of the fundamental right to freedom of expression.

Interestingly, in its considerations, the Constitutional Court held that the fact that a court judgment had become a res judicata inherently does not invalidate an application brought forward in the constitutional fora. This raison d’être being that a Court in its constitutional competence can and rather has the duty to determine whether the judgment delivered was effectively in breach of the applicant’s right to freely express himself. The Constitutional Court further observed that the Maltese Courts and the ECtHR have regularly assessed whether judgments handed down by domestic courts respected the established principles relating to the fundamental rights provided for under the ECHR.

Therefore, the Constitutional Court, in what seems to be a much needed clarification for similar constitutional challenges, has concluded that judgments that may result in a breach of the plaintiff’s fundamental right, require to be examined from a constitutional perspective, and this irrespective of the fact that the proceedings would have been concluded and decided by means of final judgment from the competent court. It was further emphasised that the assessment that had to be made in the constitutional forum was intrinsically different than the assessment that had been carried out in the civil proceedings, and therefore, the First Hall was incorrect to conclude that it was being requested in any way to conduct a fresh interpretation of the relevant law and its application to the facts of the case.

In the aforementioned case, the Constitutional Court thus stated that the First Hall of the Civil Court was effectively being tasked with determining whether the interference with one’s fundamental right to freedom of expression was proportionate when weighed against the legitimate aim of protecting Vassallo’s reputation. It was further held that the First Hall of the Civil Court was tasked with determining whether the fine imposed was in any way disproportionate in the current circumstances and in light of the said fundamental freedom. Therefore, the Constitutional Court ordered that the proceedings be sent back to the First Hall of the Civil Court so that the Court can examine thoroughly any potential infringements of the applicant’s fundamental human rights by operation of this judgment.  

In conclusion, by means of this recent judgment, although some may argue that the judicial stability provided by a res judicata has somewhat been weakened, it is safe to say that any judicial proceeding, whether pending or complete, must nevertheless conform and be harmonized in line with the guarantees of an individual’s fundamental human rights.