Justice for the Clergy

Chapter 5: Justice for the Clergy

(Extracts of the book Administrative Justice in the Catholic church, by Yves Alain Ducass, Paris 2018, 374 p).

According to data as of 31 December 2012, published in the Statistical Yearbook of the Church[1], it appears that:

• There are 5,033 bishops, of whom 3,917 are diocesan;
• There are 414,313 priests, with a slight increase compared to the previous year, predominantly from Africa, South America and Asia[2]. In Europe, the priests are older[3].
• There are 42,104 Permanent Deacons, with an increase mostly in Europe and North America.
• There were approximately 118,000 seminarians in 2009.

 

Clerics give their lives to God and to the Church, making many sacrifices, including that of a family life because of celibacy. It is a great gift that the faithful generally welcome with gratitude. Similarly, many of the Catholic faithful work contentedly within the ecclesial structures, and most situations of conflict can be resolved through dialogue and prayer.

Sometimes, however, tensions arise between clerics and faithful or between clercics and their superior. To clarify things, Huysmans[4] and Rik Torfs[5] have examined the rights and obligations of clerics, by distinguishing:

• The rights of clerics, such as the common rights of the faithful (c. 208-221), the right of association (c. 278), the right to fair remuneration (c. 281), the right to holidays (c. 283 §2), etc.
• The legitimate expectations of clerics, such as the care and concern of the bishop, the right to be listened to (c. 384), the possibility of excardination (c. 271), obtaining an office corresponding to the cleric’s abilities (c .274), a pension at retirement (c. 538), etc.
• Legitimate expectations vis-a-vis clerics, such as the simplicity of life and works of charity (c. 282), practice of the common life (c. 280), continued training (c. 279), etc.
• The obligations of clerics, such appropriate dress (c. 284); the abstention from prohibited behavior (c. 285).

In case of non-compliance with these rights and formal legitimately expected obligations, dialogue is the rule; but there may be situations where neither dialogue nor mediation is enough, and where recourse is made to the justice of the Church. We do not have precise information on the manner in which this justice intervenes in practice, but we have a rough idea from three complementary works:

• For administrative recourse, a survey by Etienne Rozé on conflict occurring in a diocese[6];
• For hierarchical recourse, a survey by James H. Provost of American dioceses[7];
• For contentious administrative remedies, an investigation by Michael Landau[8] of the second section of the Supreme Tribunal.

With regard to the difficulties encountered, Etienne Rozé conducted a survey in 2014 in the Catholic diocese of Nancy-Toul, where he collected testimony from 50 persons, of which he presents a typology that we summarize below in our own words.

• 60% of difficulties relate to the relationship of a person holding authority with a group. This is particularly the case when a person seeks to impose a different function on a group, or when a person sees his proposals systematically rejected by a group and feels excluded. Women, in particular, often feel used, abused and non-recognized. Groups complain that their work is useless because, when there are decisions to make, it is often the priest alone who decides: « Everyone shuts up, he is the priest. « 
• 20% of difficulties relate to relations between two priests, or between a priest and his bishop or the Episcopal Vicar, knowing that there is sometimes non-respect for the authority of the bishop, for example when certain priests voluntarily refuse to participate to the diocesan meetings;
• 20% of the difficulties identified concern the relationship between juridic persons, knowing that relations between diocesan and parish structures are considered not easy, and sometimes difficult.

A peculiarity specific to the Church is the regrouping in the hands of the Bishops of the powers of governance, judicial power, and legislative power in a diocese, which does not facilitate the clarity of matters in order then to distinguish the level they have reached… “but it has to happen! » says Etienne Rozé.

Sometimes it happens that relations fester, for example due to the « sweet politeness « that makes us not dare to say to someone that he is not in his place.[9] Another issue is poor understanding of the concepts of authority, obedience, and power, both by those who hold the authority and by the silent majority which has sometimes tended to idolize the priest, confusing the sacrament of order and the power of governance. With regard to administrative recourse, both hierarchical and contentious-administrative, here is what can be learned from the work of Etienne Rozé:

• The use of mediation has proved positive. In many conflicts mentioned, one of the protagonists is himself a guarantor, in the eyes of the hierarchy, of canonical order in his sector, whereas many of the laity have only a very vague idea of these rights. This may introduce an imbalance in the dialogue. The mediator may invite the parties to objectify the rules invoked, in order to identify false interpretations of these rules, in good or bad faith;
• An appeal to a higher authority often does not change anything, or sometimes even strengthens the position of the parish priest. Hierarchical intervention […] when it is implemented, does little, because even if the situation is more clear then, this intervention only rarely safeguards the relationship;
• Even if only a few of the situations reported are addressed, on first analysis, by canonical juridical recourse, at no time is this way of resolving conflicts mentioned, even in order to turn it down. This lack of interest can be motivated by ignorance, or it can come from a reluctance to respect the canonical remedy which is often regarded not as a solution, but as a « declaration of war. »

Regarding mediation, two priests of West Africa have reported the importance of brotherhood as lived within the priestly body. They clarify first of all that in Africa, the role of family is particularly important, because there is no social security or pension, and so that the priest and his family remain strongly linked until death. In practice, the two extreme cases are:

• The family is pleased that one of its members is a priest, and does not hesitate to help him and/or encourage him; or to ask him for favors;
• The family has values that are incompatible with the Christian life, and the priest must break with his family, at least provisionally, to be able to exercise his vocation.

 

In both cases, the priest needs the support of his confreres.  The priests of West Africa are united into diocesan, national[10] and regional[11] confraternities, in order to find a new family. As in a traditional African family, unity and harmony must be preserved between the members, so the confraternities may provide means of mediation when tensions occur. Here is an example:

A priest complained to the diocesan delegate of the UCB that his bishop required him to return to his home, on the grounds that he refused to obey by delaying to show up at his new assignment. The delegate of the UCB met the bishop and discovered that the situation was more complex than it seemed, because the priest had left the diocese without authorization, hiding this fact from his bishop who found out from someone else. The delegate could then return to see the priest and urge him to obey his bishop, explaining that he has reason to be angry with him.

 

It also happens that some bishops informally speak of their difficulties with some priests of the diocese to the delegate of the Union of the Clergy of Benin (UCB). The latter will usually find the priests in question, listen to them and give their advice after hearing both sides, then arguing their case (if necessary) with the bishop.

These national associations, which the rest of the world could usefully imitate, are important insofar as they are sometimes provided with a full-time secretary, or they officially mandate one of their members to ensure ecclesial communion. Their presence may partly explain the lower number of recourses from Africa, without however managing to prevent them all[12].

With regard to hierarchical recourse, the 2014 annual report of the Congregation for Clergy indicates that it intervened for hierarchical recourse, without clarification as to their number, or its decisions which are the subject of contentious-administrative recourse[13]. James Provost gave us a clearer vision from two surveys conducted in the United States with all the dioceses, about cases of hierarchical recourse brought between 1969 and 1984[14]. The results were as follows:

• 36 hierarchical recourses were made before the Roman Curia, out of the 141 dioceses that responded to the survey;
• 28 of these proceedings concerned priests, including 14 for the removal and transfer of parish priests, 5 for rehiring of parish priests, 5 for priests’ pensions, and one for the salary of a parish administrator; 2 for refusal of incardination, 1 for refusal of ordination of a deacon;
• 8 other remedies involved religious, parishioners, parishes, religious education, or the changing of godparents;
• 3 cases out of the 36 gave rise to contentious-administrative recourse.

With regard to contentious-administrative recourse on the part of clerics, we see first of all from our database which, on 15 October 2016, contains 384 contentious-administrative recourses from clerics including:

• 2 recourses filed by a permanent deacon[15];
• 44 recourses filed by bishops, generally against decisions of the Curia, which had ruled in favor of a subordinate’s hierarchical recourse[16];
• 338 recourses by priests against decisions of their bishop which they deemed unfavorable and unjust.

 

The recourses of clerics are predominantly directed against the decrees of the Congregation for Clergy, but not all of them:

• 236 relate to decisions by the Congregation for Clergy,
• 68 relate to the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life[17].
• 17 relate to the Congregation for the Evangelization of Peoples,
• 13 relate to the Congregation for the Oriental Churches,
• 10 concern the Congregation for Education,
• 4 relate to the Congregation for the Doctrine of the Faith,
• 28 are divided between the other Dicasteries,
• 8 focus on a Dicastery not identified.

 

In addition to the groupings of parishes and the reduction of churches to profane use, the recourses relate mainly to the transfer and removal of parish priests, on which we will spend the first part of this chapter. Then, we’ll discuss recourse against other types of administrative decisions, and finally the most serious cases, which are the subject of criminal proceedings, but which may also be the subject of administrative sanctions which are subject to recourse.

1. Removal and Transfer of Parish Priests

In any human enterprise, public or private, with multiple territorial settlements, the work-contracts of regional and local officials generally include clauses of dismissal and transfer at the discretion of a superior. In the Church, these procedures are well codified, and they also seem to be more protective of rights than in many public and private enterprises. It remains no less true that a transfer brings changes with it, and it is not always easy to reconcile the common good with individual interests.

With regard to the removal and transfer of parish priests, canons 1740 to 1752, which conclude the 1983 Code of Canon Law, are included in Book VII concerning procedures, as if they were necessarily contentious. Labanderia explains this particularity, inviting us to understand the Latin title of Book VII De processibus within the ambit of procedure, and not in the sense of a trial:

The term is applicable to any formal process in opposition, judicial or administrative, established by the law to protect certain rights or general or particular interests.

In particular law, the Conference of French Bishops, as well as those of other countries[18], decided that « Each bishop will be able to appoint parish priests for six years, with the possibility of extension[19] » which gives a certain degree of predictability to all and allows a part of the conflict to be avoided. Regarding justice in this sphere, we will speak based on the already cited works by James Provost and Michael Landau, to which we refer multilingual readers for a more details.

1.1. Removal of Parish Priests

In law, the removal procedure laid down in canons 1740 to 1747 is not intended so much to punish blameworthy conduct[20], as to allow a bishop greater efficiency in the proper exercise of parish ministry within his diocese. In effect, canon 1740[21] does not require serious misconduct on the part of the parish priest for his removal; but when it comes before the set time, against the wishes of the priest in question, the authority who makes this decision must show a serious reason[22], which is not always without difficulties. The reasons that could lead to removal[23], as well as the procedure to be followed by the bishop, are described precisely in the code. Here is a case reported by the press:

In May 2013, the priest of Megeve had to be relieved of his duties, on the grounds that he refused to leave his Masonic Lodge. Having lost ipso facto his housing and remuneration, he made recourse to his Lodge, which formed a support committee, and rather than making hierarchical recourse, he requested an audience with the Pope and then published a book, To be a Brother, Remain a Father[24] of which this is an extract: The injustice of which I was the victim gives me wings. […] The Bishop, before throwing me out, suggested that I go to a monastery to pray and reflect. To pray, this I will do. To reflect, I have already thought about it. I do not not renounce my freedom of conscience. […] I wanted to make myself heard. I knocked on doors. I have written letters. I have given interviews. I have pleaded my cause. Nothing. Not a word. Not a reaction. I have argued that an accused has the right [to] defend himself. Nothing. I have therefore decided to go to Rome to ask for an audience with the Holy Father. […] I wish to request the lifting of the sanction that strikes me. […] Finally, I have an appointment at the Congregation for the Doctrine of the Faith, the crucial place. […] “Irreconcilable, irreconcilable.” […] It is finished, they show me to the door.

 

 

In law, the decrees of removals of parish priests must in particular be preceded by a prior consultation and the consultation of two priests. If the Bishop maintains his decision for removal, the order must specify the right of recourse of the parish priest against this decree, stating that the latter has suspensive effect. Some parish priests use this right, making contentious-administrative recourse against their transfer:

In France, a parish priest who had been removed stayed in his parish for more than a year, due to the suspensive effect of three appeals to the Supreme Tribunal, all of which were rejected[25].

 

In order to avoid successful recourse, many authors suggest the need for bishops to respect the procedure scrupulously, otherwise an administrative recourse by the priest is likely to lead to a positive decision at the level of the Congregation for Clergy, or even of the Supreme Tribunal. This victory is only provisional, because, in general, the Bishop then resumes the procedure and promulgates a new decree identical or similar to the first, but, this time, unassailable on the form. The result is mostly a confusion detrimental to ecclesial communion within the parish, where the parish priest is removed and then reinstated, and then removed again.

 

A point of jurisprudence is worth emphasizing with regard to the age limit for a parish priest. When a bishop imposes a rule on parish priests pertaining to the beginning of retirement at a fixed age, for example 75 years, most parish priests accept the rule, but not necessarily all. Since an age limit is not a ground referred to in canons 1740 and 1741, several parish priests removed at the fateful age have won their hierarchical recourse against the decision of their removal. The Congregation for Clergy encourages bishops to find another ground for removal that is more consistent with canon 1740, or to maintain the parish priest in place if no other ground is found.

In several cases mentioned by James Provost[26], the bishop removed a parish priest for reasons of age. The latter made hierarchical recourse. The Congregation convinced the bishop to reconsider his decision. In both cases, the priest died within two years, and one might ask ask if the tension caused by the hierarchical recourse did not enter into the equation.

 

In 1994, Dominique Letourneau considered that ecclesiastical justice concerning the removal of parish priests still had a long way to go:

If the methods and legal means to protect fundamental rights are in great part left to the discretion of the ecclesiastical authority, it is no longer possible to speak of real protection. For example, if a conflict arises about the removal of a parish priest, can one consider that the rights of the person concerned are truly protected by the established procedure (« the Bishop will debate with two parish priests chosen in the group provided to this effect in a stable manner by the presbyteral council on the proposal of the bishop »[27])? It is doubtful. […] The remedies are inadequate and sensitivity is lacking among the judges[28]. In addition, canon 221 §2 is not worded in a satisfactory manner. The fundamental right in question is the right to be heard in judgment within a reasonable time by an impartial tribunal[29].

Some circumstantial developments are presented by Michael Landau, but the size of his book (416 pages) and the language used (German), prevent us from discussing them in detail, instead referring interested readers to read it, or to ask specific questions online on the professional part of the site www.canonistes.org.

1.2. Transfers

Mutatis mutandis, the procedure of transfer of parish priests is treated in canons 1748[30] to 1752. Jurisprudence has stated the following points, among other things:

• In accord with canon 1747 § 3[31], contentious administrative recourse effectively suspends the appointment of a new parish priest[32];
• Since 1981, the Supreme Tribunal has admitted to discussion different cases where the bishops had filed recourses against the decisions of the Congregation for Clergy, which had invalidated their own decrees relating to the transfer of priests. According to Zénon Grocholewski[33], such situations would be inconceivable in civil justice, but they are possible in the Church because Ordinaries have proper power that makes them accountable to God, and does not make them depend on the Congregations[34].

Note that the procedure does not mention the transfer of priests who are only vicars, nor the transfer of bishops. For the latter, we observe that between April 2005 and October 2012, Benedict XVI has « accepted 78 resignations of Bishops, almost one per month,” in application of canon 401 § 2:

A diocesan bishop who has become less able to fulfill his office because of ill health or some other grave cause is earnestly requested to present his resignation from office[35].

The procedure for the removal of bishops is not specified, but at times it gives rise to controversies that the press comments on[36].

On 13 January 1995, a news release of the Holy See announced that the Holy Father John Paul II had taken the pastoral governance of the diocese of Evreux (France) away from His Excellency Mgr. Jacques Gaillot[37], transferring him to the titular see of Parténia[38]. On the same day a second release of the Holy See affirmed that « the prelate has not demonstrated the ability to exercise the ministry of unity, which is the first duty of a bishop [39] » The decree of transfer isued by the Congregation of Bishops has not been made public, but according to Francis Mesner and Jean Werkmeister, it is not a renunciation, since Mgr. Gaillot was received on 12 February 1995 by the prefect of the Congregation for Bishops, and he refused to submit his resignation, after having received the Prefect’s request. It is not a criminal sanction, since there was no trial, no removal ipso iure. It is not an involuntary transfer of an office-holder, since it is a seat and not an office. It remains a removal by administrative decree of the Congregation, which is without doubt the decision adopted, probably motivated by a breach of the ecclesial communion. The decree not being approved in forma specifica by the Pope, it would be subject to contentious-administrative recourse, but this has apparently not taken place.

With regard to transfers of priests-religious, this includes additional features which are discussed in the following chapter.

2. Administrative Sanctions

In addition to transfers and removals of parish priests, which are the subject of a special procedure, there are other types of sanctions that fall within the normal procedure of the recourse (cc. 1742-1739). Fortunately, many cases are resolved by dialogue, as can be seen in a particularly interesting case, reported by Rik Torfs[40]:

In 1992, Rik D., the parish Priest of Buizingen, in the Diocese of Mechelen-Brussels, published a book entitled De laaste dictatuur[41], which meets with marked success in Belgium, at a time when it openly criticized the Holy See and the Pope. Mgr. Daneels, archbishop, met him on two occasions, and both agree to issue a joint press release, in which one the one hand the archbishop defended the Pope, highlighting a few historical errors of the book, and on the other hand, the priest defended his freedom of expression as a member of the Catholic faithful, while reiterating his submission to the Pope and to the archbishop for the conduct of his parish. The case remained there.

This procedure is consistent with that that the Cardinal Ratzinger evoked in 1985[42], but unfortunately, things do not always go so well.

 

2.1. Incardination and excardination

Without getting into the details of specialized publications[43], let’s remember that once he is ordained, the new cleric is incardinated into a particular church or an institute that has this faculty, in accord with canon 265:

Every cleric must be incardinated either in a particular church or personal prelature, or in an institute of consecrated life or society endowed with this faculty, in such a way that unattached or transient clerics are not allowed at all.

In accord with canon 267[44], incardination that is called “of origin” may be changed to incardination called “derived,” which requires an administrative act containing a letter of excardination of the bishop of the diocese of origin (called a quo) and a letter of incardination of the bishop of the diocese of arrival (called ad quem). When one of the two bishops does not want to sign the necessary authorization, it is often a result of these difficulties that the jurisprudence of the Supreme Tribunal agrees to decide in part[45] and gave a basis for the future of canon 268§1[46]

Canon 268 §1. A cleric who has legitimately moved from his own particular church to another is incardinated in the latter particular church by the law itself after five years, if he has made such a desire known in writing both to the diocesan bishop of the host church and to his own diocesan bishop, and neither of them has expressed opposition in writing to him within four months of receiving the letter.

All the same, conflicts continue to occur:

Father xxx, a doctor of theology, is incardinated in a Diocese of Africa. He is currently in France without a ministerial assignment and without income, due to a dispute which put him in opposition to his bishop three years earlier. He is currently as an acephalous priest, and seeks to engage in dialogue with the new bishop of his diocese who does not respond to his request for excardination in France, probably because of the tone of his request[47]

 

Here is a second case also coming from Africa:

A priest was assigned for a long time as parish priest, with responsibilities also with the Conference of Bishops in a country of Central Africa. The situation is deteriorating with his new bishop who, according to the priest, lives in luxury and is not concerned with the fate of his priests and seminarians, several of whom are leaving because they lack the means of subsistence. A mission of the Roman Curia has just inspected the diocese and the bishop held the priest responsible for what he considers to be interference. The priest was bullied to the point that his life was in danger. He then went away in order to study, with the tacit agreement of the archbishop, but without the formal agreement of his own bishop. After celebrating the anniversary of his ordination, saying Mass in Montmartre, he phoned his African colleagues, who informed him that his bishop indicated in a sermon that he had been suspended for one year. He never received any written notice on this topic.

 

In the two cases above, the priests concerned have not chosen to make recourse, but outside of Africa, others do so, sometimes winning their case :

Having been forcibly incardinated into another diocese, a priest made recourse to the Supreme Tribunal and won the case[48].

Conversely, some bishops will show understanding and welcome into their dioceses priests who have not been excardinated, preferring « the salvation of souls » to the letter of the law.

2.2. Refusal or Revocation of Faculties

As with the laity, there are a number of recourses by priests who have not received the assignment that they hoped for[49], or who have been removed from one that they had received[50].  With regard to admission to holy orders, the hierarchy sometimes thinks that a candidate does not possess the required qualifications, in particular in the case of deviant sexual behavior, for which recourses are sometimes made for the non-admission to the exercise of orders[51], or for a refusal of incardination[52]. In most cases, no recourse is made, but a sense of injustice still remains:

A young seminarian was recently refused entry into a cycle of theology by his seminary, after 2 years of philosophy, 2 years of mission and a year of internship in parish. The likely reason for this refusal is the fact that this young seminarian, well integrated in his diocese, receiving a lot of positive feedback, had adopted the practice of communion on the tongue and on one’s knees, in a seminary deemed strongly opposed to this[53].

Once ordained, a priest normally receives the permissions and the assignments which correspond to his capabilities and to the needs of the diocese. In the event of a problem, these assignments can be removed by a singular administrative decree. This can cause tensions, giving rise to recourse or mediation; then, if this fails, hierarchical recourse or even contentious–administrative recourse. Thus the Apostolic Signatura is regularly made aware of a recourse against the refusal or removal of faculties to hear confessions[54], to preach[55], to teach[56], to hold a office[57], etc.

Sometimes these refusals and restrictions on the exercise of priestly ministry are based on canon 223 §2[58], which allows the authority to regulate the exercise of the rights specified for the faithful, by invoking the common good. The jurisprudence of the Supreme Tribunal requires that this general principle is not applied in an arbitrary manner, but that its application is based on other canons such as canon 835 §1, which entrusts to bishops the duty to exercise but also to « guard » the office of sanctification in their diocese[59]. Here is an example of jurisprudence[60]:

In the course of a criminal canonical trial, a priest was sent to an assigned residence as per canon 1722. The priest was acquitted, but an administrative decree maintained the assignment to the residence and the prohibition of celebrating the sacraments outside of an abbey, under canons 223 §2, 764 and 974. On 22 July 2013, the priest made hierarchical recourse against this decree and, on 9 September 2013, the Congregation for Clergy confirmed the assigned residence but requested a decent salary for this priest. The priest then made contentious-administrative recourse, which was rejected by the Secretary of the Supreme Tribunal on 19 February 2014 for obvious lack of foundation.  C. Begus[61] specified that this decision was based on canons 223 §2 and 835.

Here is another example:

A priest who committed sexual abuse of minors was sent to a medical center for evaluation and treatment. The experts gave an optimistic prognosis about his behavior. Despite this, the local bishop declared him unfit to properly exercise the priesthood, by analogy with canons 1041 and 1044 §2. As a result there was a recourse, in which the College of fathers confirmed on 4 May 1996 the legitimacy of the bishop’s decision, without closing the door to a later contrary decision[62].

 

The case of a priest-canonist shows that canon law sometimes offers means of important defense to those who have mastered the intricacies.

On July 5, 2000, the Catholic priest and Professor of Canon Law Mgr. R.G. W. Huysmans contracted a « registered partnership » with a theologian, Ms. Dr.… without, however, living with her or violating his promise of celibacy. Since this situation is not addressed by canon law, the Bishop of Rotterdam cannot resort to canons 1394 (marriage) or 1395 (concubinage) for suspension latae sententiae, or proceed by analogy, since canons 221 §3 and 18 provide for a strict interpretation of the law. On 1 June 2001, he published a decree prohibiting priests from contracting a « registered partnership[63] » but the act does not apply to Huysmans because it is not retroactive. After negotiating in vain, the bishop published a new decree on 1 December 2002, ordering priests who had concluded a « registered partnership » to dissolve it before 1 May 2003, under penalty of suspension latae sententiae[64], for disobeying the bishop. His partner not wishing to separate amicably, Mgr. Huysmans then asked the civil court to break his « registered partnership, » on the grounds of obedience to his bishop, but the court rejected this reason[65]. Realizing that the conditions may not be met for a suspension latae sententiae, the Bishop initiated a criminal trial, which led to the conclusion that the conditions of accountability and fault laid down by canon 1321 §1 were not met, even though the « registered partnership » of Mgr. H. with Ms N. remained in force.

In the present case, we note that the bishop did not promulgate a special decree, subject to contentious-administrative recourse, but two general decrees which are not subject to recourse.

2.3. The Loss of the Clerical State

Canon 290 specifies under what conditions a cleric may lose the clerical state[66]. We will focus on cases where this loss comes from an administrative decision resulting from n° 1° or 3° of this canon, or when, having lost it, it is recovered in accord with canon 293[67]. To undertand its importance, here are some statistics of the competent dicasteries[68]:

• In 2015, the Congregation for Clergy registered 771 applications for exemptions from obligations arising from the priestly ordination, distributed as follows:

	Diocesan	Religious	Total
Priests	400 (52 %)	264 (34 %)	664 (86 %)
Deacons	76 (10 %)	31 (4 %)	107 (14 %)
Total	476 (62 %)	295 (38 %)	771 (100 %)

• In 2010, the Congregation for Divine Worship and the Discipline of the Sacraments^[69], competent under canon 290 n 1, also specified the procedure that it applies. In total there were 115 exemptions from priestly obligations, including 54 for priests aged more than 40 years, 25 for priests of less than 40 years and 2 for priests at risk of death. It also gave 34 exemptions to candidates to sacred orders.
• The Congregation for the Evangelization of Peoples has competencies “in the territories placed under its supervision,” with specific faculties for the priests^[70]
• The Congregation for the Doctrine of the Faith, competent in the most serious cases, and in particular the case of paedophilia, also intervenes under conditions that we will discuss later.

In the area of jurisprudence, Father Mendonça[71] speaks of four hierarchical recourses in which the Congregation for Clergy ruled in favor of the petitioners against administrative decisions of loss of the clerical state.

Brother X made recourse against an administrative act of 7 August 1998, by which his ordinary withdrew the clerical state from him by administrative decision, without having complied with the procedure laid down in canons 1720 to 1722. The Congregation for Clergy ruled in his favor and required the Ordinary to give back to him immediately his priestly ministry, and to pay the compensation which he would have received if he had remained in his position.

Similarly, Javier Canosa[72] references the sentence of 31 October 1992 (Prot. 22571/91 CA), in which the Supreme Tribunal overturned the administrative decision of a bishop which had been confirmed by the Congregation for Clergy, prohibiting a priest from the public exercise of the ministerial priesthood, in the absence of a criminal trial, and it required the bishop to return him to his previous situation.

Mendonça observed that the Congregation for Clergy examines hierarchical recourses from the canonical and non-pastoral perspective, and thus many decisions are made in favor of the petitioners, for procedural errors.  The Congregation seeks to prevent their repetition, recommending that the bishops apply by analogy the procedure of preliminary investigation that is provided in criminal matters as per canon 1717—even if formally, the Code does not require this for administrative decisions:

Can. 1717 – §1. Whenever an ordinary has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances, and imputability, unless such an inquiry seems entirely superfluous.

 

Taking into account the plurality of Congregations involved, the Supreme Tribunal may be requested to specify which one is competent.

In the sentence Prot. 32108/01 ca of 18 March 2006[73], the Apostolic Signatura judged that the Congregation for Clergy was incompetent to decide if an Ordinary has or does not have the right to withdraw from a priest the faculty to preach (c. 764) or to hear confessions (c. 974). In the event of recourse, the competent Dicastery is the Congregation for the Doctrine of the Faith, especially if the priest is involved in a serious offense.

 

2.4. More Serious Acts

In recent years, the news has been filled with cases of paedophilia involving priests. The Conference of Bishops of France (EFC) has put in place a permanent unit in the fight against paedophilia, equipped with an internet site for victims[74]. In 2017, the EFC published statistics that out of a total number of 222 victims, more than 60% of the testimony alleges that it occurred before 1970, 35% that it occurred between 1970 and 2000, and 4% of assaults were committed since the year 2000. If we are to believe these figures, a salutary improvement has occurred in the Church in France, and one can reasonably ask whether ecclesiastical law and justice are of use. At the beginning of the period studied, the law in force was the result of the 1917 Code and the instruction of the Holy Office Crimen Sollicitationis of 1922. In the 1983 Code, canon 194 specifies who may be lose full rights to any ecclesiastical office. On 25 June 1988, article 52 of Pastor Bonus confirmed the competence of the Congregation for the Doctrine of the Faith for offenses committed against the faith or in the celebration of the sacraments, and it also gave competence over « the most serious crimes »:

Art. 52 — The Congregation examines offences against the faith and more serious ones both in behaviour or in the celebration of the sacraments which have been reported to it and, if need be, proceeds to the declaration or imposition of canonical sanctions in accordance with the norms of common or proper law.

Tadig Fulup provided an estimate of the number of these cases throughout the world:

Between 1975 and 1985, no cases of paedophilia were reported to Rome […] from 2001 to 2010, of the 3,000 accusations of priests or religious for crimes committed over the last fifty years, 60% concerned an attraction to adolescents of the same sex (ephebophilia), 30% involved heterosexual attraction, and 10% concerned prepubescent males—thus pedophiles in the strict sense are 300 out of 400,000 diocesan and religious priests in the world, or 0.075%[75].

For the crimes of paedophilia and for the other more serious crimes, article 52 of Pastor Bonus and article 8 of the substantive norms[76] establish the Congregation for the Doctrine of the faith as the Supreme Tribunal for the more serious offenses.

Art. 8 § 1. The Congregation for the Doctrine of the Faith is the Supreme Apostolic Tribunal for the Latin Church as well as the Eastern Catholic Churches, for the judgment of the delicts defined in the preceding articles.

The Congregation also behaves like a Dicastery, because article 21 of the abovementioned substantive norms provides for two administrative procedures, one by special decree (Art 21 §2 1°) and the other by presentation to the Holy Father (Art 21 §2 2°):

Art. 21 § 1. The more grave delicts reserved to the Congregation for the Doctrine of the Faith are to be tried in a judicial process.

• 2. However, the Congregation for the Doctrine of the Faith may:

1° decide, in individual cases, ex officio or when requested by the Ordinary or Hierarch, to proceed by extrajudicial decree, as provided in can. 1720 of the Code of Canon Law and can. 1486 of the Code of Canons of the Eastern Churches. However, perpetual expiatory penalties may only be imposed by mandate of the Congregation for the Doctrine of the Faith.

2° present the most grave cases to the decision of the Roman Pontiff with regard to dismissal from the clerical state or deposition, together with dispensation from the law of celibacy, when it is manifestly evident that the delict was committed and after having given the guilty party the possibility of defending himself[77].

Unlike its judicial decisions, the decisions of the Congregation made under Article 21 §2 1° are subject to contentious-administrative recourse, which is necessary to protect the accused persons. On December 2, 2010, Mgr. Arrieta attracted the attention of the Prefect of the Congregation for the Doctrine of the Faith on the risk of overflow of administrative procedures to the detriment of the right of defense of accused persons or mere suspicions:

To seek to simplify the judicial procedure further so as to impose or declare sanctions as grave as dismissal from the clerical state, or to change the current norm of can. 1342 §2 which prohibits proceeding with an extra-judicial administrative decree in these cases (cf. can. 1720), does not seem at all appropriate. Indeed, on the one hand it would endanger the fundamental right of defence – and in causes that affect the person’s state – while on the other hand it would favour the deplorable tendency – owing perhaps to lack of due knowledge or esteem for the law – towards ambivalent so-called ‘pastoral’ governance, which ultimately is not pastoral at all, because it tends to obscure the due exercise of authority, thereby damaging the common good of the faithful[78].

Priority should be given to protecting the potential victims of recidivism on the part of pedophile priests. It is also important, incidentally, to protect the finances of dioceses, which can be forced to pay damages. In this dual perspective, many bishops ask that priests who have served prison sentences for crimes of paedophilia no longer be admitted to the exercise of priestly ministry, even if they have not made a request for dispensation. Accordingly, the Congregation for Divine Worship and the Discipline of the Sacraments has relaxed the dispensation procedure in such cases[79].

 

In addition, the Congregation for the Doctrine of the Faith intervenes in various recourses relating to the financial situation of adjudged priests, or the resumption of priestly ministry by priests who had previously been sentenced.

Therefore, in 2003 the CDF authorized a bishop to allow such a return « on the condition that this does not constitute a risk to minors and does not cause scandal among the faithful »[80].

Under the pretext of protecting the victims, and secondarily to protect the finances of the Church[81], there are situations where the right of defense of accused priests is mishandled:

There are cases of priests who, according to their own statements, are removed from the clerical state against their will, without having had the opportunity to give their opinion, without even knowing that a procedure had been initiated against them[82].

Such situations are not limited to America.

Although he pleaded not guilty in a civil trial, a priest was condemned for paedophilia in 2005 by the French judicial system, and served his sentence in accord with the civil law. At his release from prison, the bishop sent the Congregation for the Doctrine of the Faith a favorable opinion for the continuation of his ministry, which is what he is doing in another diocese, not without a ecclesiastical overseer put in place as a precaution. Everything went well until November 2009, when the bishop sent him a letter from the Congregation for the Doctrine of the Faith[83], questioning the possibility that he might wish to abandon the priesthood. On December 8, 2009, he replied that in his opinion, no canonical argument justifies his dismissal from the clerical state. On 18 December, he wrote to the Pope to ask him to live out his final days in a spirit of reparation, and with the joy of being a priest. Some time after, the bishop notified him of the decision taken a few weeks earlier by Pope Benedict XVI, to take from him the clerical state and release him from of all the obligations which are connected to it, namely celibacy[84]. He then filed an recourse to the Prefect of the Supreme Tribunal of the Apostolic Signatura, protesting that he had not been heard, nor did he know what was alleged against him, and did not have the opportunity to defend himself, and he received a brief reply from the Prefect based on canon 1404[85]: « This is not our competence!” The next day, he left the diocese[86], and long after he was married.

 

This type of case is not isolated, and it is even common, according to the comments of the Bishop of Nice as reported by Tadig[87] Fulup:

Each Friday morning, the CDF had the Pope sign a series of decrees reducing priests to the lay state[88].

Various publications suggest that this way of operating is not satisfactory:

• In the 1983 code, canon 1342 §2 specified that it is not permitted to impose a permanent penalty without a criminal trial;
• In 1988, Rev. Bertram F. Griffin, J.C.D. raised the difficulty of applying c. 1395 to pedophile priests, because of the clause of accountability requiring the intervention of experts, but he concluded that it is possible to do so if a civil trial is pronounced;
• In 1991, Thomas J. Green, J.C.D. considered that the canons on forced dismissal from the clerical state aim to defend the people of God against offensive conduct by some priests, while Gregory Ingels, J.C.D. insisted that this resignation cannot be imposed by an administrative decree but: 1. by a dispensation granted by the Holy Father at the request of the priest concerned, 2. as an expiatory penalty pronounced under c. 1336 §1, 5°, and 3. with the recognition of the invalidity of the priest’s ordination under canons 1708-1712.

In conclusion, one can ask if we are not in the process of changing from a period of let-it-go and secrecy, to a period of precaution, where one punishes without necessarily ensuring that the rights of defense of priests have been respected. Fortunately, there are cases where contentious-administrative recourse, associated with other procedures, permits the restoration of the rights of a priest unjustly condemned.

A priest of the Diocese of Calgary presented two recourses to the Supreme Tribunal, including a classic contentious-administrative recourse, and a recourse against a decision in criminal proceedings by the Rota. Here are a few noteworthy points about this epic case:

• On May 2, 1889, the civil criminal court of Calgary condemned a priest to a sentence of imprisonment for alleged abuse against a young girl. He was sentenced in the first instance, and appealed the decision.
• Shortly after, the new archbishop of Calgary deprived the priest of the faculty of preaching, as well as of the public celebration of Mass, and ordered him to move away from the diocese and to cease any contact with a group of people. The priest concerned then introduced a hierarchical recourse against this single administrative act.
• On November 8, 1989, the Congregation for Clergy rejected the recourse, because the archbishop had made known his intention to begin a canonical criminal process. The priest then presented a contentious-administrative recourse with the Supreme Tribunal.
• On January 30, 1991, the civil Court of Appeals absolved the priest, « for lack of facts.”
• On April 27, 1990, the archbishop initiated a canonical criminal trial announced for various crimes, including a sin against the Sixth Commandment and disobedience to the bishop.
• On 30 January 1991, the criminal canonical judge concluded that the evidence could not be gathered as to the existence of the offenses of which the priest was accused. The Promoter of Justice made recourse to the Rota against this sentence.
• On April 27, 1990, the archbishop initiated a canonical criminal trial announced for various crimes, including a sin against the Sixth Commandment and disobedience to the bishop.
• On 30 January 1991, the criminal canonical judge concluded that the evidence could not be gathered as to the existence of the offenses of which the priest was accused. The Promoter of Justice made recourse to the Rota against this sentence.
• On November 14, 1992, the Congress of the Supreme Tribunal declared the invalidity of the act of the Congregation for Clergy of November 8, 1989, believing that it had violated the law because it was not competent to deal with the hierarchical recourse, because the criminal trial was in process.
• On 29 March 1994, the Rota held, without further investigation, that the criminal judgment of 30 January 1991 must be partly reformulated, but the sanctions forbidding the priest to stay in the territory of the diocese, of teaching, of preaching and publicly celebrating Mass should be retained. The priest then presented a recourse against this decision.
• On February 21, 1996, the College confirmed the decision of the Congress of the Supreme Tribunal, considering that the Rota was competent and that the right of defense has been respected.
• The recourse was then continued to the Rota before a turnus coram Burke, and then coram Pinto, who, on 21 February 1997, formulated a dubium under the following formula: « Must the Rotal sentence of 29 March 1994 be confirmed or invalidated? « A rogatory commission was then incorporated by Mgr. Caberletti.
• Finally, the Rota declared: « The evidence does not support the existence of offenses of which Father A was accused. Accordingly, the latter is totally absolved. The archbishop of Cagliari is requested in consequence to use the appropriate means to return to Father A. his former ministries and his good reputation.« 

 

2.5. Other Disputes Concerning Clerics

There are many other cases of administrative disputes concerning priests. A common case relates to the pension rights of priests who have left their priestly ministry, voluntarily or involuntarily. In France, the Association for an Adequate Pension (APRC)[89], fighting since 1979 so that those insured by religious organizations can benefit from social protection worthy of this name, considered in 2017 that there is still a long way to go.

Another type of case in point is one where the priests find a violation of the law by their superior. Because of their position, priests are often the first to be informed of the internal scandals of the Church. It is then important that justice protects them, for they choose not to remain silent for fear of conflict with the superior whom they depend on, but they dare to denounce injustice in an appropriate framework, so that the scandal does not cause the faithful to flee, and that the image of the Church is not tarnished by cases brought in the public sphere or before civil justice.

Sometimes, however, God allows public trial as was the case of Saint Paul in Jerusalem and Rome (Acts 23, 21), and more recently of Don Lorenzo Milani (1923-1967):

Don Lorenzo Milani, founder of the School of Barbiana, near Florence, experimented with a method of education for the poorest, based on his love for young people and his conscientious objection in the face of the exploitation of the poor by the rich. His detractors accused him of communist leanings, of paedophilia and the glorification of violence. He died on June 26, 1967, between the judgment of the Court of first Instance which exonerated him, and the sentence of recourse which pronounced the end of the litigation due to the death. On 20 June 2017, Pope Francis travelled to his tomb, likewise acknowledging his innocence, and praising his love of the Church, « with the frankness and truth that can also create tensions, but never fracture nor abandon.”

Such conflicts are inevitable but, as the Bible states, “Woe to the world because of things that cause sin! Such things must come, but woe to the one through whom they come!”

[1] www.eglise.catholique.fr/vatican/statistiques-de-leglise-dans-le-monde/ consulted on 15 October 2016.

[2] In France in 2015, there were approximately 10,000 priests younger than 75, of which nearly 2000 were from abroad.

[3]In 2017, the diocese of Autun had 9 priests under 40 years old, 47 between 40 and 59 years old, 18 between 60 and 69 years old, 66 between 70 and 89 years old, and 12 over 90 years old.

[4] Huysmans (R.G.W.) « De positie van de clerus in de nieuwe Codex » in R. Torfs (ed) ; Het nieuwe kerkelijk recht. Analyse van de Codex Iuris Canonici 1983, Louvain, Peeters, 1985, 206-208.

[5] Torfs (Rik), “Rights and Legitimate Expectations of Clerics,” course given at the Faculty of Canon Law of Louvain and Strasbourg, 2014.

[6] Rozé (Etienne) Structures diocésaines, paroisses et médiations – réflexions à partir de la situation du diocèse catholique de Nancy et Toul, mémoire de diplôme universitaire de médiateur, Institut Catholique de Paris, IFOMENE, promotion 2014-2015.

[7] Provost (James H.), “Recent experiences of administrative recourse to the Apostolic See”, in The Jurist, 46 (1986), p. 142-163.

[8] Landau (Michael), Amtsenthebung und Verzetzung von Pfarrern. Eine Untersuchung des geltenden Rechts unter besonderer Berücksichtigung des Rechtsprechung der Zweiten Sektion des Höchsten Gerichts der Apostolischen Signatur, Frankfurt, Peter Lang, 1999, 416 p.

[9] Gandhi himself used to say that if he had to make a choice only between violence and cowardice, he would advise violence.

[10] Ex ; l’Union du Clergé Béninois (UCB) ou l’Union fraternelle du clergé ivoirien (UFRACI).

[11] Ex : l’Union régionale des Prêtres d’Afrique de l’Ouest – URPAO

[12] We have heard of a priest of Benin, who wanted to continue his studies in Europe without the agreement of his bishop. After canonical monitions were planned against him, the bishop suspended him and the priest would made hierarchical recourse against this decision and wrote a book, that we have not found, to share his testimony.

[13] The congregation also specified that it conducted a work of vigilance on the good administration of ecclesiastical goods, and instructed a few requests for rehabilitation to the ministry of the priesthood and permanent deacon, as well as 708 requests for exemptions to the obligations resulting from priestly ordination, including 304 from priests and 69 from diocesan deacons, approximately 60%, and 208 from priests and 27 from deacons who were members of institutes of consecrated life and societies of apostolic life, or approximately 40%.

[14] Provost (James H.), « Recent Experiences of administrative recourse to the Apostolic See,” The Jurist 46 (1986), p. 142-163.

[15] Among the 710 cases listed as of 15 September 2016, in which the petitioner is identified as an individual, only one is identified as coming from a deacon, case Prot. 48485/14 CA, reported in the 2014 activity report of the Holy See. We know only that it was examined by the Congress on 29 October 2014 and that it was made in response to a previous question referenced 48421/13 VAR and that its object was the « Praecepti regrediendi in diocesim. »

[16] Among the 714 cases identified on 15 October 2016, of which the applicant is identified, 43 came from a bishop. They focus on varied subjects such as the reduction of churches to profane use, exercise of the priestly ministry, issues of ownership, revocation of an office, transfers of parish priests and superiors general, etc.

[17] We will deal with this type of case about recourse for religious.

[18] Australia, Canada, Gambia, Liberia, Sierra Leone, Ireland, the Philippines, the USA for six years, or India and Nigeria for a specified period left to the discretion of the bishops. According to Thomas Paprocki in New Commentary on the Code of Canon Law, Beal, Coriden, Green, CSLA, P. 1845/ 1852.

[19] General Order in Council of 13 June 1984, in Official Bulletin of the Episcopal Conference, 29, 1984, p. 444.

[20] Removal and transfer may be accompanied by censures and expiatory penalties (c.1331-1338). In addition, removal occurs as of right for the cases listed in c.194.

[21] Can.  1740 — When the ministry of any pastor becomes harmful or at least ineffective for any cause, even through no grave personal negligence, the diocesan bishop can remove him from the parish.

[22] Can. 193 — § 1. A person cannot be removed from an office conferred for an indefinite period of time except for grave causes and according to the manner of proceeding defined by law.  §2. The same is valid for the removal of a person from an office conferred for a definite period of time before this time has elapsed, without prejudice to the prescript of can. 624, §3

[23] Can. 1741 —The causes for which a pastor can be removed legitimately from his parish are especially the following:

1/ a manner of acting which brings grave detriment or disturbance to ecclesiastical communion;

2/ ineptitude or a permanent infirmity of mind or body which renders the pastor unable to fulfill his functions usefully;

3/ loss of a good reputation among upright and responsible parishioners or an aversion to the pastor which it appears will not cease in a brief time;

4/ grave neglect or violation of parochial duties which persists after a warning;

5/ poor administration of temporal affairs with grave damage to the Church whenever another remedy to this harm cannot be found.

[24] Vésin (Pascal) Être frère, rester père. Prêtre ou franc-maçon : pourquoi choisir ? Paris 2014, Presses de la Renaissance.

[25] Nourrichard (Mgsr. Christian), Pastoral letter of 14 January 2011, published in Evreux catholique, and accessed 7 December 2017.

[26] Provost (James H.), “Recent experiences of administrative recourse to the Apostolic See”, in The Jurist, 46 (1986), p. 142-163.

[27] C. 1742 §1.

[28] Hervada (Javier), Pensamientos de un canonista en la hora presente, Navarra Gráfica Ediciones, Pamplona, 2004. p. 129.

[29] Letourneau (Mgr. Dominique c.s.), « Quelle protection pour les droits fondamentaux et les devoirs des fidèles dans l’Église ? », Studia canonica, 28 (1994), p. 59-83.

[30] Can. 1748 — If the good of souls or the necessity or advantage of the Church demands that a pastor be transferred from a parish which he is governing usefully to another parish or another office, the bishop is to propose the transfer to him in writing and persuade him to consent to it out of love of God and souls..

[31] C. 1747 §3. While recourse against a decree of removal is pending, the bishop cannot appoint a new pastor, but is to provide a parochial administrator in the meantime.

[32] Recursadversus amotionem a paroecia effectum habet suspensivum quoad nominationem novi parochi in declaratio Prot 193 periodica 60 (1971) No 2, p. 348. Cf. Prot 193/70; Prot 3211/72.

[33] Grocholewski (Zenon), « L’autorità amministrativa come ricorrente alla ectionaltera della Segnatura Apostolica », Appolinaris 55 [1982) 752-779.

[34] Lumen Gentium 21.

[35]  Bourdin (Anita), Rome, 1 août 2013 (Zenit.org)

[36] Hiebel (Jean-Luc), « L’affaire Gaillot, les médias et le droit » in RDC 45, 1995, p. 101-118.

[37] Revue de droit canonique (RDC), tome 45/1, Strasbourg 1995, p 74-162.

[38]

Former diocese of Algeria, disappeared under the sand at the end of the 5^th century.

[39] Mesner (Francis) et Werkmeister (Jean) « les aspects canoniques de l’affaire Gaillot, in RDC 45, 1995, p. 75-82.

[40] Torfs (Rik), « L’affaire Gaillot et la liberté d’expression » in RDC 45, 1995, p. 83-94.

[41] Devillé (Rik), De laaste dictatuur. Pleidooi voor een parochie zonder paus, Louvain, Kritak, 1992, 224 p. ; « La dernière dictature. Plaidoyer pour des paroisses sans Pope », Antwerpen, Coda, 1992, 221 p.

[42] Cf. Chapter 8: Appeals relating to the Congregation for the Doctrine of the faith.

[43] Reyes Vizcaino (Pedro Maria) « la excardinacion e incardinacion del clérigo » Ius canonicum, en ligne cosultée le 15 décembre 2016. Ciongo Kasangana (Augustin), « L’incardination des clercs, histoire et canonicité ». Master’s thesis submitted to the Institut Catholique in Paris on 8 September 2016.

[44] Can. 267 — § 1. For a cleric already incardinated to be incardinated validly in another particular church, he must obtain from the diocesan bishop a letter of excardination signed by the same bishop and a letter of incardination from the diocesan bishop of the particular church in which he desires to be incardinated signed by that bishop.

[45] Prot 9375/77 CA, comunicationes 10 (1978) 152-158.

[46] Prot 9375/77 CA, comunicationes 10 (1978) 152-158.

[47] Request for mediation proposed to « Canonists without Borders » on 26 July 2016.

[48] Prot. 9375/77 CA Labandeira (Edouardo), IC 21/41 (1981) 393-417 ; Communicationes 10 (1978) 152-158

[49] Can. 145 — § 1. An ecclesiastical office is any function constituted in a stable manner by divine or ecclesiastical ordinance to be exercised for a spiritual purpose.

[50] The loss of an office can depend, in particular, on the end of the time-period provided for appointment to this office, on the age limit of the office-holder, on his free renunciation, on his transfer to another office (c. 190-191) or by revocation (c. 192-195).

[51] Prot. 34180/02 CA against a refusal of admission to sacred orders.

[52] Prot 9375/77 CA.

[53] Riposte catholique, 29 August 2017.

[54] Prot. 1063/69 CA cited by D’Ostilio (Frederico), Dizionario degli Instituti di perfezione, V8, p 1247) ; Prot 2207/71 CA ou 36823/05 CA

[55] Prot 38098/06 CA

[56] Prot 10977/79 CA ou 15573/83 CA.

[57] Prot. 185/70 CA, in ME (1973) 1-4, p. 303 ; Prot 6023/74 CA

[58] Can. 223 — §  2. In view of the common good, ecclesiastical authority can direct the exercise of rights which are proper to the Christian faithful.  This canon is the subject of an abundant jurisprudence.

[59] Pontifical Council for Legislative Texts, « Explanatory Note. Further clarification for the application of canon 223 §2,” 8 December 2010, Communicationes 42 [2010], 280-81.

[60] Prot. 48563/13 CA, in Monitor eccelsiasticus, CXXXI (2016), p 21-26

[61] Begus (Cristian), « Commento / Note – Decretum, 48563/2013 CA. Monitor ecclesiasticus, CXXXI (2016), p. 27-36.

[62] Prot 23737/92 CA, et note de Mgr Joseph Punderson, Ministerium iustitiae, op. cit. p. 383-387.

[63] A type of Dutch civil solidarity pact (PACS), used for example between persons of the same sex or between a brother and sister jointly operating a farm.

[64]The situation is different from that of Monsignor Vernette in France, who entered not into a PACS but a civil marriage, celebrated in Toulouse on 24 July 2002 with Mrs Liliane Josette Moncelon.

[65] The Dutch law provides for two cases of dissolution, namely mutual consent, that the woman refused in the case; and the irretrievable breakdown of the relationship that Mgr. Huysmans refused to plead, because he believed that this was not the case and that he did not have the right to lie.

[66] C. 290 : Once validly received, sacred ordination never becomes invalid. A cleric, nevertheless, loses the clerical state: 1/ by a judicial sentence or administrative decree, which declares the invalidity of sacred ordination; 2/ by a judicial sentence or administrative decree, which declares the invalidity of sacred ordination; 3/ by rescript of the Apostolic See which grants it to deacons only for grave causes and to presbyters only for most grave causes.

[67] C. 293 : A cleric who loses the clerical state cannot be enrolled among clerics again except through a rescript of the Apostolic See.

[68] Attivita della santa sede 2015, Libreria editrice vaticana, p. 725.

[69] Congregation for Divine Worship and the Discipline of the Sacraments: « Circular Letter to the diocesan Ordinary and the Superiors General of the Institutes of Consecrated Life and Societies of Apostolic Life  » in the La documentation catholique 94, 1997, p. 824-825.

[70] During its Plenary Assembly in February 1997, the Congregation for the Evangelisation of Peoples asked the Holy Father for special faculties to allow it to intervene, by administrative means, in specific penal situations, and this, in the margin of the general provisions of the Code. These « faculties » were updated and expanded in 2008, and others, of a similar nature, were granted to the Congregation for Clergy. www.vatican.va/resources/resources_Arrieta-20101202_en.html

[71] Mendonça (R.P. Augustine), The Bishop as the Mirror of Justice and Equity in his Particular Church: Some Practical reflexions on Episcopal Ministry, intervention presentée à Halifax au colloque annuel (21-24 octobre 2002) de la Canadian Canon Law Society.

[72] Canosa (Javier), « Giustizia amministrativa eclésiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582.

[73]Tribunal suprême de la Signature Apostolique, Coram Cacciavillan, Exercizio del mistero sacerdotale (Ecc.mo Vescovo diocesano Cogregazione per il Clero), Prot. No 320108/01 CA du 18 mars 2006, in Ius Ecclesiae, XXIII, 2011 No 3, p. 651-668 ;

[74] http://luttercontrelapedophilie.catholique.fr/

[75] Fulup (Tadig), Tout est bien, Nantes 2014, ed. Les sentiers du livre, p. 157-158.

[76] Congregation for the Doctrine of the Faith, The New Norms on the More Serious Offenses, article 8, 15 July 2010, http://w2.vatican.va/content/john-paul-ii/en/motu_proprio/documents/hf_jp-ii_motu-proprio_20020110_sacramentorum-sanctitatis-tutela.html

[77] Ibidem.

[78] Arrieta (Mgr Juan Ignacio), Le cardinal Ratzinger et la révision du système pénal canonique : un rôle déterminant, www.vatican.va/resources/resources_arrieta-20101202_fr.html

[79] Congregation for Divine Worship and the Discipline of the Sacraments, circular letter of 6 June 1977, Origins 27, (1997-1998), 169-172.

[80] Morrisey (Rev. Francis G.), « Penal Law in the Chirch today: Recent Jurisprudence and Instructions » in Advocacy Vademecum, édité par Patricia M. Dugan ed. Wilson & Lafleur, Collection Gratianus, Montréal 2006, p. 49-66.

[81] In the United States, a federal judge approved on Monday, 9 November 2015, a plan of bankruptcy for the diocese of Milwaukee, which will allow it to compensate hundreds of victims of sexual abuse by members of the clergy. In December 2015, the Catholic diocese of Duluth (Minnesota) went bankrupt paying the compensation due to victims of sexual abuse. It is the 15^th American diocese in this situation. www.la-croix.com/Urbi-et-Orbi/Monde/Etats-Unis-un-nouveau-diocese-en-faillite-a-cause-des-abus-sexuels-2015-12-09-1390748.

[82] Morrisey (Rev. Francis G.), « Penal Law in the Church today: Recent Jurisprudence and Instructions » in Advocacy Vademecum, edited by Patricia Mr. Dugan ed. Wilson & Lafleur, Gratianus Collection, Montreal, 2006, p. 49-66.

[83] CDC Prot 458/03-30624.

[84] CDC Prot No 458/2003.

[85] Can. 1404 — The First See is judged by no one.

[86] Fulup (Tadig), Tout est bien, Nantes 2014, ed. Les sentiers du livre, p. 7, 164-167 ;

[87] In Breton, “Tadig” means Dad.

[88] Fulup (Tadig), Tout est bien, Nantes 2014, ed. Les sentiers du livre, p. 166.

[89] www.aprc.asso.fr ; email to Canonists without Borders in January 2017.