A judgment that leaves preliminary pleas undecided is null

The Constitutional Court on 5 January 2026 declared null a judgment of the First Hall of the Civil Court that had found a breach of the right to a fair hearing. The first court never decided two preliminary pleas raised by the respondents, either in its reasoning or in its operative part. The Constitutional Court held that this defect prejudiced the respondents' own right to a fair hearing, and sent the case back.

The facts

In November 2016 a magistrate opened an inquiry into alleged abuse of students. In March 2017 the inquiring magistrate heard minors as witnesses. C.I. was not told of the sittings, although he knew that the inquiry was under way.

In September 2017 he was charged with offences involving minors. The inquiry records, including the minors' evidence, were produced at trial. In 2023 he asked the criminal court to remove that evidence from the record, and it refused.

He then filed a constitutional case against the Commissioner of Police, the Attorney General and the State Advocate. The Commissioner and the Attorney General pleaded that they were not the proper respondents and that he had not first used the ordinary remedies.

On 20 September 2024 the First Hall found a breach of the right to a fair hearing, limited to the sitting of 14 March 2017. It held that he may cross-examine the minors in the same way that they testified, and it awarded him €1,000 in non-pecuniary damages. It released the State Advocate from the case. Both sides appealed.

What the court held

The court was composed of Chief Justice Mark Chetcuti, Mr Justice Giannino Caruana Demajo and Mr Justice Anthony Ellul. It did not reach the merits. In August 2025 it had raised, of its own motion, the nullity of the judgment under appeal and suspended delivery.

The appeal of the Commissioner and the Attorney General repeated their first two pleas: that they were not the proper respondents, and that ordinary remedies existed. Their appeal said the First Hall had rejected those pleas. The court found that the judgment contained no reasoning on them and no decision on them in its operative part.

Article 219 of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta) requires such a decision. It provides: "Kull dikjarazzjoni li l-qorti trid li tkun deċiżiva jew obbligatorja, għandha tiġi mdaħħla fid-dispożittiv" (every declaration the court intends to be decisive or binding shall be included in the operative part).

If the case went on, the pleas would be decided for the first time on appeal. The second plea concerns the discretion under the proviso to article 46(2) of the Constitution and article 4(2) of the European Convention Act (Chapter 319), which allows the court to decline to act where ordinary remedies exist.

Article 790 of Chapter 12 says that a plea of nullity of a judgment under appeal shall not be accepted if the judgment is just in substance. The exceptions include lack of jurisdiction, lack of summons, a judgment beyond what was asked, and any other defect that prejudices the right to a fair hearing.

The court held: "nuqqas ta’ deċiżjoni dwar l-ewwel żewġ eċċezzjonijiet hu difett li jippreġudika l-jedd ta’ smigħ xieraq għal minn tahom" (failing to decide the first two pleas is a defect that prejudices the right to a fair hearing of those who raised them).

It declared the judgment null and did not consider either appeal. It saw no need to decide its third ground, that the First Hall had released the State Advocate without first hearing the parties under article 738A of Chapter 12.

The costs of the first judgment and of both appeals are to be borne without taxation between the parties, because there was no winner or loser and what happened was no party's fault. The records return to the First Hall.

Why it matters

A lawyer who raises preliminary pleas in a constitutional case should check that the judgment decides each one in its operative part. If it does not, the appeal may end in nullity rather than a ruling on the merits, and the case starts again. A first court should decide every plea expressly, even when it thinks the merits make a plea unnecessary.

Where it sits

The case applies the rule that the operative part of a judgment, not its reasoning, is what binds the parties. A plea discussed but not decided in the operative part has not been decided. Under article 790 of Chapter 12, an appeal court usually saves a judgment that is just in substance. Defects that touch the fair hearing are the exception, and the court placed the failure to decide a preliminary plea among them.

The Constitutional Court named no earlier authority and decided on articles 219, 738A and 790 of Chapter 12 alone. The First Hall had relied on the Constitutional Court (12 July 2023), which held that a person who testified during an inquiry may be brought to testify again at trial. It had also relied on the case law of the European Court of Human Rights on the protection article 6 of the Convention gives a suspect.

Source

Constitutional Court, 495/2023/1, 5 January 2026, 495/2023/1