Chapter 2
Principles, Organization and Procedures
(Extracts of the book Administrative Justice in the Catholic church, by Yves Alain Ducass, Paris 2018, 374 p).
In this chapter, which is theological and organizational in nature, we will examine in turn:
- The principles of ecclesiastical justice;
- Rights and ecclesiastical administrative justice;
- The procedures for administrative recourse.
- The Principles of Ecclesiastical Justice
The principles of canon law constitute a particular area, which is called « fundamental canon law. » Covering canon law as a whole, these principles are not limited to administrative law, to ecclesiastical justice, or only to those involved in administrative justice.
Let’s focus first of all on the importance of justice, as the Church says in her social doctrine:
Justice is a central theme in the social teaching of the Church. The accents have evolved in time, as a function of the political, economic and social context. Because before to be a theoretical question, justice is a practical question which emerges from the scandal of poverty that is tearing apart the social fabric. It was raised with a new acuity with the industrial revolution. She has known of new developments with the extension of economic exchanges at the global level[1].
With regard to law and to justice within the Church, the introduction to the Code of Canon Law gives an overview:
There is recalled that the canonical law emanates from the nature of the Church, that its root is located in the power of jurisdiction given by Christ to the Church and that its purpose is in the care of souls in order to obtain the eternal salvation[2].
The principles of Canon Law are not the subject of a particular canon, although they are mentioned in general in the second part of canon 1752, the final canon of the 1983 Code of Canon Law. This canon focuses on the procedures for transfers of parish priests[3], but the two principles mentioned can be extended to the whole of the canon law:
Observing the canonical equity, and without losing sight of the salvation of souls, which must always be in the Church the supreme law. (Canon 1752)
The 25 June 1988 Apostolic Constitution Pastor Bonus confirms this point, in its general norms concerning the Roman Curia:
The questions must be processed according to the procedure to be universal, whether specific of the Roman Curia and according to the standards of each Dicastery, using forms and criteria pastoral, The attention turned toward both justice and the good of the Church and, especially, toward the salvation of souls[4].
More recently, the Magisterium confirmes this point in the Motu Proprio Mitis Iudex[5], in which Pope Francis shines an interesting light on the principle of the wellbeing of souls, when he speaks of the necessary reform of the procedures of matrimonial justice:
All these things were done following the supreme law of the salvation of souls, insofar as the Church, as Blessed Paul VI wisely taught, is the divine plan of the Trinity, and therefore all her institutions, constantly subject to improvement, work, each according to its respective duty and mission, toward the goal of transmitting divine grace and constantly promoting the good of the Christian faithful as the Church’s essential end… Therefore, the zeal for the salvation of souls that, today like yesterday, always remains the supreme end of the Church’s institutions, rules, and law…[6]
Now that we have observed the fundamental principles of law and justice of the Church, and referred interested readers to more in-depth studies[7], it remains to clarify the modalities of practical application, examining in turn:
- Justice, which gives to each person what is his;
- Mercy, based on the goodness of God, which characterizes the Church;
- Canonical equity, which strives to balance justice and mercy.
- Justice: Give to the Other What is His
The question of justice arises often in the social doctrine of the Church. Consider the words of Benedict XVI in his Apostolic Letter Caritas Veritate, on integral human development in charity and in truth:
First of all, justice. Ubi societas, ibi ius: every society draws up its own system of justice. Charity goes beyond justice, because to love is to give, to offer what is “mine” to the other; but it never lacks justice, which prompts us to give the other what is “his”, what is due to him by reason of his being or his acting. I cannot “give” what is mine to the other, without first giving him what pertains to him in justice. If we love others with charity, then first of all, we are just towards them. Not only is justice not extraneous to charity, not only is it not an alternative or parallel path to charity: justice is inseparable from charity, and intrinsic to it. Justice is the primary way of charity or, in Paul VI’s words, “the minimum measure” of it, an integral part of the love “in deed and in truth” (1 Jn 3:18), to which Saint John exhorts us. On the one hand, charity demands justice: recognition and respect for the legitimate rights of individuals and peoples. It strives to build the earthly city according to law and justice[8].
In 1967, which is the beginning of our period of study, respect for the rights of the faithful and the limitation of the abuses related to the exercise of administrative power are the 6th and 7th guiding principles for the reform of the Code of Canon Law:
- On account of the fundamental equality of all members of the Christian faithful and the diversity of offices and functions rooted in the hierarchical order of the Church, it is expedient that the rights of persons be appropriately defined and safeguarded. This brings it about that the exercise of authority appears more clearly as service that its use is more clearly reinforced, and that abuses are removed.
- In order that such objectives may be appropriately implemented, it is necessary that particular attention be given to the organization of a procedure which envisions the protection of subjective rights. Therefore in renewing the law attention should be paid to those elements which are most especially lacking in this area, i.e. administrative recourses and the administration of justice[9].
These principles of justice are the result of the work of the General Assembly of the Synod of Bishops of October 1967 for the revision of the 1917 Code of Canon Law, in which Patrick Valdrini saw the birth of modern administrative justice in the Church:
this Synod stated: It is not enough that reign in our law the principle of the defense of rights. It must also recognize the subjective rights real, without which there is no real Ordinatio iuridica societatis. And he proposed the retention of the existing procedures[10], and that in addition are introduced remedies to ensure the protection of these rights against abuse on the part of people who govern. Not only recognized the tradition of resolution of conflicts within the courts, but we wanted to increase the number. This fact deserves to be noted, as it is unknown[11].
This Synod, which took place two months after the Church had celebrated the golden jubiliee of the Apostolic Constitution Regimini Ecclesiae Universae, specified the objectives of the reform of the Church’s administrative justice, and we will try to determine the extent to which these objectives have been achieved. In the 1983 Code, this principle of justice is found in canon 221, on the right of the faithful to a fair trial:
Can. 221 §1. The Christian faithful can legitimately vindicate and defend the rights which they possess in the Church in the competent ecclesiastical forum according to the norm of law.
- 2. If they are summoned to a trial by a competent authority, the Christian faithful also have the right to be judged according to the prescripts of the law applied with equity.
- 3. The Christian faithful have the right not to be punished with canonical penalties except according to the norm of law.
It is also the subject of canons 1732-1739, concerning appeals against administrative decrees.
Doing justice by coldly giving to another which is his own is not enough, as Jesus himself taught His disciples:
I tell you, unless your righteousness surpasses that of the scribes and Pharisees, you will not enter into the kingdom of heaven[12].
The Church teaches that it is proper to add charity:
Charity transcends justice and completes it in the logic of giving and forgiving[13].
The Fathers of the Church go even further, believing that:
Mercy is the opposite of the strict justice: it consists in an equitable distribution between all. It distributes to each what it deserves, does neither on one side nor the other, is without bias in the distribution. But mercy is a sorrow aroused by the grace: she leans on all human beings with the same affection, does not render this it deserves to the one which is worthy of punishment, and it fills beyond any measure that which is worthy of reward[14].
With the Jubilee year of Mercy, this characteristic of the justice of the Church was given even greater value, and this includes the field of administrative justice. In fact, in 2011 Pope Benedict XVI recalled that the possibility offered to the faithful to take recourse in contentious-administrative cases is a requirement of charity:
Justice, which the Church pursues through the contentious-administrative process, can be considered as a beginning, a minimal requirement and at the same time an expectation of charity, at once indispensable and yet insufficient, if it is compared with the charity on which the Church lives. Nevertheless the pilgrim People of God on earth will be unable to realize its identity as a community of love unless it takes into consideration the demands of justice[15].
More recently, Pope Francis specified that:
justice and mercy are a single thing in God. The mercy is fair and justice is merciful. » For the Pope, the disease of this world is the « cardiosclérose », that is to say « the inability to feel the tenderness, (…) the hard heart », and the mercy is « the drug against this disease « [16].
For the principle of charity to be respected, it is not sufficient that the possibility of recourse exists in theory. It must also be effective, which requires a procedure that is accessible, inexpensive and quick.
The accessibility of administrative justice constitutes one of the conditions of justice desired by Pope John Paul II:
I need not remind you that even the modus in which ecclesiastical trials are conducted must be translated into forms of behavior suitable for expressing this spirit of charity. How can we not think of the image of the good Shepherd who bends over the lost, wounded sheep when we wish to describe for ourselves the judge who in the Church’s name deals with and judges the status of one of the faithful who turns to him in trust[17]?
Again, we will see in Chapter 9 how accessible it is in reality.
- The common good, fairness and communion
Together with justice and charity, which contribute to the pastoral care of souls, the principle of equity is the third guiding principle adopted by the General Assembly of the Synod of Bishops in October 1967 for the revision of the Code of Canon Law:
- To foster the pastoral care of souls as much as possible, the new law, besides the virtue of justice, is to take cognizance of charity, temperance, humaneness and moderation, whereby equity is to be pursued not only in the application of the laws by pastors of souls but also in the legislation itself.
Hence unduly rigid norms are to be set aside and rather recourse is to be taken to exhortations and persuasions where there is no need of a strict observance of the law on account of the public good and general ecclesiastical discipline[18].
After making reference to the principles of justice and charity, Benedict XVI indicated that this balance must be done by searching for the « common good »:
To desire the common good and strive towards it is a requirement of justice and charity[19].
The common good is indeed one of the key points of canon 223, which specifies the limits of the rights of the faithful, both for themselves and for ecclesiastical administration[20] :
Can. 223 §1. In exercising their rights, the Christian faithful, both as individuals and gathered together in associations, must take into account the common good of the Church, the rights of others, and their own duties toward others.
- 2. In view of the common good, ecclesiastical authority can direct the exercise of rights which are proper to the Christian faithful.
Justice is also the basis of Book VI of the Code on Sanctions in the Church, which is framed by canons 1311 and 1399:
Can. 1311 The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions.
Can. 1399 In addition to the cases established here or in other laws, the external violation of a divine or canonical law can be punished by a just penalty only when the special gravity of the violation demands punishment and there is an urgent need to prevent or repair scandals.
Canon law also seeks to balance justice and charity, even as it seeks to balance the common good of the Church and the protection of the rights of the faithful. This search for balance is expressed by the principle of canonical equity, which complements that of the salvation of souls in Canon 1752 (“Canonical equity is to be observed, and the salvation of souls, which must always be the supreme law in the Church, is to be kept before one’s eyes.”)
Many books are devoted to the search for this balance, and in particular that of Sergio Aumenta on the protection of the rights of the faithful in the contentious administrative-canonical trial, hat the Secretary of the Supreme Tribunal prefaces in this way:
We can say that the work of Don Aumenta constitutes a substantial contribution for the verification of the principle which inspired the system of administrative justice canonical that is to say that the resolution of the conflict has for aim to harmonize the justice of concrete cases with the peace of the social body[21].
On the occasion of the seventh centenary of the death of Saint Yves, Francesco Pompedda explained that canonical equity has the function of improving justice, and thus of promoting the common good and making interpersonal relationships more human.
If in some cases, it was going against justice, if we put barriers to the common good or if it is made more difficult the human relations, it could no longer speak properly of equity, but rather of a bad government, injustice or of weakness[22].
Looking further back, theologians agree that the Second Vatican Council valued the ecclesiology of communion. Thus, Fiorenzo Romita employs the term of ecclesial communion, which seems to us to express more than just the purpose of ecclesiastical justice:
The exercise of the power of governance is an aspect of the munus pascendi spoken of in Lumen Gentium, n° 21. It is ordered toward the establishment, extension, promotion and protection of ecclesial communion. When the public administration either undermines communion by its acts or is alleged to have done so, the institute of canonical administrative justice can be seen as an important instrument for the fuller realization of the ecclesial communion. On the one hand, it serves to remind administrative authorities that they are at the service of the ecclesiastical communion and are to exercise their function from within the People of God, not over and against it; in this respect it protects communion from the effects of arbitrariness. On the other hand, it provides juridical stability and security to the legitimate exercise of administrative power, by protecting the rupture of communion from the effects of disobedience and illegitimate litigiousness
[23].
For his part, Sergio Aumenta expresses it in these terms:
The ecclesiology of communion has returned to discussion how to exercise the power in the Christian community. The logic of communion and participation has guided the legislator to redefine, from the legal point of view, the relationship between authority and simple faithful, that is to say between the baptized who exercise the guide service in the Community and those who benefit from their department […] Each legal position subjective and each power in the Church is recognized and protected to the extent where it is ordered to the communion. For this reason, even the protection of individual interests is ordered to the growth of the person in the ecclesial communion (and not against or outside of it): thus, are eliminated all the roots of conflict between private and public interests[24].
Pope Benedict emphasized this point to the Plenary Assembly of the Supreme Tribunal:
The activity of the Supreme Tribunal aims to reconstitute ecclesial communion, namely, to re-establish an objective order in conformity with the good of the Church. Only this communion re-established and justified through the motivation of the judicial decision can lead to genuine peace and harmony within the ecclesial structure. […] This is the meaning of the well-known principle: Opus iustitiae pax. The demanding re-establishment of justice is destined to reconstruct just and orderly relations among the faithful, and between them and ecclesiastical Authority. Indeed, the inner peace and the willing collaboration of the faithful in the Church’s mission derive from the re-established awareness that they are acting in full accord with their vocation. Justice, which the Church pursues through the contentious-administrative process, can be considered as a beginning, a minimal requirement and at the same time an expectation of charity, at once indispensable and yet insufficient, if it is compared with the charity on which the Church lives. Nevertheless the pilgrim People of God on earth will be unable to realize its identity as a community of love unless it takes into consideration the demands of justice[25].
In practice, it is important to reconcile the respect of rights with ecclesial communion. In this regard, Manual J. Arroba Condé[26] recalls that the function of rights is precisely to order social relations, while justice allows for the protection of the rights of the faithful, balancing them both with the common good of the Church.
With regard to society in general, the legal domain of the Church is defined by Canon 1401:
Can. 1401 By proper and exclusive right the Church adjudicates:
1° cases which regard spiritual matters or those connected to spiritual matters;
2° the violation of ecclesiastical laws and all those matters in which there is a question of sin, in what pertains to the determination of culpability and the imposition of ecclesiastical penalties.
In the field of ecclesiastical justice, Arroba distinguishes three kinds of canonical processes:
- the contentious trial, to manage conflicts between physical or legal persons,
- criminal trials, allowing for the imposition of just sanctions when an offense or a crime has been committed in violation of a penal law of the Church;
- the contentious administrative trial, which we will discuss below.
For this last type of trial, the judge must verify that the principle of equity has been respected. According to Philippe Toxé, this principle means that « the administration can only act within the framework of the law, » and « is opposed to an arbitrary exercise of power[27]. »
One of the characteristics of this ecclesial communion is that it is not a respecter of persons, as we can see in the prophets of the Old Testament who dared to speak to the powerful at the risk of their lives. Psalm 149 invites to rejoice and to be proud when justice is applied both in favor of the powerful and the humble:
Hallelujah! Sing to the Lord a new song, His praise in the assembly of the faithful…. For the Lord takes delight in his people, honors the poor with victory. Let the faithful rejoice in their glory, cry out for joy on their couches, With the praise of God in their mouths, and a two-edged sword in their hands, To bring retribution on the nations, punishment on the peoples, To bind their kings in shackles, their nobles in chains of iron, To execute the judgments decreed for them—such is the glory—of all God’s faithful. Hallelujah!
- The law and the justice administration
Any abuse of authority in an arbitrary sense is contrary to justice animated by charity, the objective of which is the triumph of justice and the reestablishment of Truth.[28]
When abuse of authority comes from the administrative authority, then one enters generally into the field of administrative law that Yves Gaudemet considered to be specific:
The autonomy of administrative law first wishes to this that it constitutes a complete set, with its system of sources, in which the jurisprudential source occupies an essential place, the exact meaning of the term, with a specific jurisdiction and the principles of law which are his own[29].
Its particularity is the fact that the considerations of commutative justice give place to those of distributive justice, based on considerations of general interest:
the excessive nature of administrative law [French civilian] is reflected by the existence of the prerogatives of public law which have not of analogy in the private law. These prerogatives are based on coercion and manifested by the employment of the unilateral act. They allow the administration to determine unilaterally the situation and rights of administered in compliance with the Act and, by then, contrast with the techniques of private law, dominated by the principle of the equality of the wills and the legal form of the contracts[30].
2.1. The boundaries of administrative law
Before entering the heart of the matter concerning the law and the administrative justice of the Church, it is appropriate to delineate the boundaries between canon law and other types of law, such as
- secular law,
- private ecclesiastical law,
- sacramental law, and
- ecclesial criminal law.
2.1.1. Boundaries with secular law [31]
In the early years of the Church, it happened that Christians were directed to secular courts. Saint Paul found this offensive and he roundly criticized the Corinthians for this:
How can any one of you with a case against another dare to bring it to the unjust for judgment instead of to the holy ones[32]?
Nowadays, secular courts often have to decide disputes between Catholic faithful, or between a member of the Catholic faithful and a Catholic institution. This is particularly the case in matters of ecclesiastical goods, or labor la, which is the subject of hundreds of legal cases. On this last point, the dispute between individuals and parish or diocesan associations, or Catholic institutions is the responsibility of labor courts. According to Marie-Paule Descard[33], it is organised in France around three main axes, corresponding to the questions below:
- Is there, or is there not a contract of employment within the meaning of the French law?
- Are personal behaviors compatible with the requirements of a Catholic business?
- Can employment be ended because a letter of mission arrived at its completion?
As for the existence of a contract of employment, the French Court of Cassation distinguishes the contracts between a religious and his congregation according to whether or not the congregation was legally established.
In view of article L. 1221-1 of the Labor Code, a person’s religious commitment can exclude the
existence of a labor contract only for the activities that he performs for the account and benefit of a legally established congregation or cultural association[34]
Nevertheless, disputes are regularly resolved before the labor courts when they relate to congregations that were not legally established, or regarding lay employees of parish associations who carry out routine tasks regarding music, catechism or church maintenance. To determine whether or not there is a contract of work within the meaning of the French law, the judges are looking for the reality of the activity, the existence of compensation in cash or in kind, and especially the existence of a relationship of subordination.
On the compatibility of personal behaviors with the requirements of the company, the question is whether we can take account of these requirements to punish an employee in his personal life. Here are two enlightening examples of jurisprudence:
Véronique B., 50 years old, a Supervisor for over 20 years in a Catholic school, was fired in April 2012 after having played the « Cougar » in a video clip by a rapper, which shocked the administrators of the establishment that employed her. Here is her testimony; « When the case erupted, I had the impression that they [the direction, NDLR] were going to burn me on a pyre in the court, because they found it so scandalous. But most of the parents supported me, and the students also. » In a judgment of 29 August 2013, the labor court of Grasse held that her dismissal for « serious misconduct » was « without actual or serious cause,” because her employer, who knew about her private activity as an actress, had never given her the slightest warning […] about the potential risks of such an activity in the light of her professional obligations.
Another case of labor law concerns a diocese:
On 29 August 2014, the French Diocese of Annecy dismissed a lay employee, but she challenged her dismissal on the grounds that her marital status had influenced the decision of her employer, because she is divorced. According to the press, the labor court would have found that the dismissal is not based on any real and serious cause, specifying in passing that « the right of labor prevails on canon law, to which the diocesan association is also subject. »And the court condemned the diocese to pay the employee € 32,000 in severance pay.
Currently, it seems that there is a certain inflection in the French case law, with the emergence of the concept of « tendency enterprises, » introduced by the case of the daycare center Baby Loup, in which the Court of Cassation recognized the merits of the dismissal of the assistant director who refused to remove her Islamic veil[35].
The third question is whether an employer may terminate the employment of the employee because a letter of mission arrived after the end of the mission. This is a point which raises a lot of difficulties. A diocesan or parish association establishes a contract of fixed-term work and think that the contract shall end, ipso facto, to the end of the mission. This situation is often accepted by the employee, but when there is a dispute, the commercial tribunals systematically recategorize the fixed-term contract as a contract of indefinite duration. Therefore, the dismissal becomes without real and serious cause.
In other countries the recourse to the civil courts often occurs because the canon law of the Church is virtually unknown. Here are two examples encountered in Senegal:
- After fifteen years of employment a teacher was fired for incompetence, while she was on maternity leave. As it was a Catholic school, she brought a case before the Ecclesiastical Hierarchy who invited her to make recourse to the civil courts. She won a first trial before the labor court, and then a second before the court of appeals.
- A bishop took away the property rights of a Catholic university belonging to a congregation, and refused to compensate the ousted congregation. Mediation was unsuccessful. A civil trial is in progress.
Some authors, such as William Bassett, have tried to determine whether or not the high rate of recourse to the civil courts denotes a certain lack of administrative ecclesiastical justice:
the rapid increase in the number of cases presented to the courts secular, which focus on cases involving churches, presents a challenge for that these Churches put in place internal structures to resolve such situations[36].
To conclude, we will confine ourselves to mentioning only four points:
- Canon law recognizes the existence of the civil law and quotes it on several occasions (for example, in canon 22)[37];
- The Church recognizes the value of civil justice[38];
- In accord with the concordats between the Holy See and Italy, Portugal, the Dominican Republic, and Brazil, some canonical sentences have civil effects, if the Supreme Tribunal of the Vatican transmits them officially to the competent judicial courts in these countries;
- Civil justice is sometimes a source of inspiration for ecclesiastical justice.
2.1.2. Boundaries with private law
The notions of private and public law are difficult to adapt to canon law, due to the sacramental condition of the faithful.
In justice to restore harmony among the faithful, Saint Luke reports Jesus clearly stating that He would not intervene in matters of inheritance and of money between individuals:
Someone in the crowd said to him, « Teacher, tell my brother to share the inheritance with me. » He replied to him, « Friend, who appointed me as your judge and arbitrator? » [39]
In fact canon law sometimes applies to relations between people, for instance when damage is caused to one member of the faithful by another, as per canon 220, for example:
Can. 220 No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy.
In a case of conflict, one of the parties can enter the diocesan tribunal to seek a decision at the end of an ordinary trial; but instead he is urged to seek an agreement by having recourse to mediation.
A young parishioner loaned money to a foreign religious to allow him to pay for his training at the seminary. The religious could not be admitted and he spent a portion of the money that he can no longer repay. Mediation was initiated with the parish priest, and continues without him to assist the two parties to find an acceptable agreement.
2.1.2. Boundaries with sacramental law
This is contrasted with another aspect of law, which is for the most part addressed by canon law, namely sacramental law. Indeed, Book IV of the Code of Canon Law is entirely devoted to sacramental law, with particular emphasis on matrimonial law.
The latter is the subject of Title VII of this book, as well as texts such as Dignitas coniubii and the recent Motu Proprios by Pope Francis, Mitis iudex Dominus Iesus and Mitis and misericors Iesus. The diocesan tribunals and the Rota render daily judgments in this area, which is not a matter of merely private law, since God and the Church are committed to the sides of the spouses:
What God has joined together, no human being must separate[40].
We will not discuss these issues, but instead will restrict ourselves to administrative law.
2.1.3. Boundaries with criminal law
Book VI of the Code, relating to sanctions in the Church, begins with canon 1311, which says that this section pertains to criminal sanctions against persons who have committed an offense. Having placed criminal law outside the scope of our book, we will therefore not be addressing sanctions resulting from a criminal judicial trial.
In contrast, canon 1342 allows the ecclesiastical hierarchy to impose a penalty by an extrajudicial decree. This constitutes an administrative decree, since administrative recourse can be taken against it.
Can. 1342 §1. Whenever just causes preclude a judicial process, a penalty can be imposed or declared by extrajudicial decree; penal remedies and penances, however, can be applied by decree in any case whatsoever.
Similarly, when a defamation case arises between two of the Catholic faithful, within the meaning of anon 220, Ronny E. Jenkins considers that there may be criminal prosecution, for example in the case of crime of falsehood (canon 1390), but there may also be administrative proceedings:
There are two judicial channels possible to assert its rights to a good reputation. The criminal trial attaches to know if a criminal offense has been committed or not and, if applicable, what penalties must be imposed on the guilty party. And the contentious trial determines whether a right has been violated and, if so, what damage must be given to the injured part. The two procedures may be related when a complaint for damage occurs during the course of a criminal trial[41].
The rules of procedures laid down in canon 1720 provide a degree of protection to a member of the faithful accused of a crime:
Can. 1720 If the ordinary thinks that the matter must proceed by way of extrajudicial decree:
1° he is to inform the accused of the accusation and the proofs, giving an opportunity for self-defense, unless the accused neglected to appear after being properly summoned;
2° he is to weigh carefully all the proofs and arguments with two assessors;
3° if the delict is certainly established and a criminal action is not extinguished, he is to issue a decree according to the norm of cannons 1342-1350, setting forth the reasons in law and in fact at least briefly.
Complementary rules of law have been enacted for the particularly serious violations of criminal law, as found for example in the 30 April 2001 Motu Proprio on the protection of the holiness of the sacraments[42], and the 18 May 2001 procedural norms of the Congregation for the Doctrine of the Faith[43].
In contrast, Pope Francis’ 4 June 2016 Motu Proprio « As a Loving Mother[44] » pertains to administrative law, because it no longer intends punishment under criminal law, providing instead for administrative sanctions against the bishops who would have been negligent in relation to offenses that occurred in their diocese, having caused serious physical, moral, or spiritual damage.
To sum up, we will exclude from our study the « criminal sanctions » which are the subject of judicial proceedings, but we will include the « administrative sanctions, » whch are a type of criminal sanctions decided by administrative decree.
2.1.4. Internal boundaries in canon law
With some adaptations, the findings of this book are applicable to the Eastern Catholic Churches in which the Code of Canons, promulgated in 1990, is close to the 1983 code of the Latin Church, as regards administrative law. Not having sufficient sources of information for the implementation in practice of the administrative justice within the Eastern Catholic Churches, we will limit ourselves to cite in Chapter 7 appeals to decrees from the Congregation for the Oriental Churches.
It will be different for the non-Catholic Christian churches and ecclesial communities, which have also been confronted with the need to resolve conflicts between their members and their internal hierarchy. Patrick Coghan has made a comparative analysis for the hierarchical churches in the United States[45]. From that he deduced that the Catholic Church is distinguished from other churches by the fact that its internal law specifies more clearly the rights and obligations of the faithful than that of other hierarchical Christian churches, while the other churches have put in place procedures for the defense of rights that are stronger than those of the Catholic Church[46].
We will not get into more detail on these considerations, which will carry us too far afield from our topic.
2.2. Administrative Law
In canon law, Paolo Gherri states that the law and administrative justice of the Church are the subject of many teaching and research works, and is well aware that they are not the subject of a consensus on which all canonists would agree:
the study of the canonical administrative law is appeared in the last fifty years as one of the main novelties canonical under the theoretical and doctrinal angle[47]
Without entering into these complex considerations, we will merely note that, during the preparatory work on the reform of the Code, it was decided to divide into two separate books of the Code the canons which pertain to administrative acts (Book II), and those which pertain to contentious administrative proceedings (Book VII). Similarly, we will seek first to understand what an administrative act is, and which constitutes its legality; then we will examine the possible ways of making recourse against it.
2.2.1. The concept of administrative act
In his treatise on procedural law, Arroba defines administrative acts in this way:
Administrative acts are acts of which enjoys a power of government in the Church, in the executive sphere, also called administrative, exercised by who holds an ecclesiastical office. They are acts of the products against the individuals, in view of the collective interest, within the limits of jurisdiction of its authority (ordinary or delegated). The other acts of government typical of executive power are regulated by the general standards (decrees, rescrits, waivers, precepts, canon 35) [48].
Aware that this is a complex notion, he refers to Labanderia[49] for an expanded historical discussion. Let us return to the beginning of the period we are studying, when the preparatory work on the revision of the Code of Canon Law began[50] and a draft basic law of the Church provided for the establishment of local administrative tribunals. At this time, the Faculty of Law of the University of Rome organised a seminar on the topic of administrative acts in the Church. Among the topics treated at this symposium, and the publications that followed in 1984, the nature of the administrative act was the subject of an important article by Lorenzo Spinelli[51].
He recalled that this was a recent concept, as it was almost entirely absent from the 1917 Code[52], but the 1983 Code dedicated ample space to it in Book I on general norms[53]. He then specified that not all acts of administration are administrative acts, which leads to important developments where he distinguishes:
- Concrete administrative acts, and abstract legislative acts;
- The different types of administrative acts: rescripts, privileges, and dispensations;
- The acts which manifest an act of discretionary will[54], and those which manifest a judgment relating to a fact[55];
- Simple acts, emanating from a single authority, and Complex acts, resulting from the decision of several parties;
- Final acts, not subject to recourse, and provisional acts[56];
- Written acts and acts that are simply oral.
In addition, he classified administrative acts according to their causes:
- First cause: Christ is the founder of the legislative, executive and legal status of the Pope and the bishops, with his statement that « You are Peter, and on this rock I will build my Church« ;
- Efficient cause: the official that places the administrative act must be competent to do this;
- Material cause: written or oral;
- Formal cause: a declaration of will or a simple recognition of the facts by the administrative authority, which implies a sufficient reason to justify the decision, or the existence of facts that the authority recognizes;
- Final cause: the salvation of souls, the common good, the public utility, the interest of the Church.
Many other authors have subsequently discussed this matter, but its complexity is such that there is no definition or classification on which the canonists unanimously agree.
Recently, William Daniel proposed rules of good governance to the ecclesiastical hierarchy, distinguishing between four types of individual administrative acts:
- Decrees containing a positive or negative decision on the juridic status of members of the Church (c. 48);
- Decrees imposing a precept (c. 49), with an obligation or a prohibition;
- Decrees creating a new legal status (c.48) for one person or for the members of a community;
- Rescripts (c. 59 §1), which confer a privilege, a dispensation or another favor[57].
Rather than dealing with the entire issue, we instead wish to try to clarify the criteria for the legitimacy of an administrative act, and to distinguish between those which are subject to recourse, and those which are not.
2.2.2. The legality of administrative acts
In the general theory of law, one can view the legality of legal acts in two different ways:
- Everything that is not explicitly allowed by the act is prohibited;
- Everything that is not prohibited by law is permitted.
In canon law, we can say at first glance that criminal law follows the first of these, since the act must be strictly interpreted and no one may be punished other than by penalties; while administrative law adopts the reverse attitude, since the Supreme Tribunal may nullify an administrative act only if it explicitly violates a law.
In his treatise on administrative canon law, Edouardo Labanderia devoted a chapter to the legality of ecclesiastical administration, which begins like this:
When the authors discuss this theme [the principle of legality applicable to the administration], they usually use of ambiguous expressions such as « the administration must comply with the Act or the law, it must adapt its administrative acts to the legality, its own acts must be legal. What meaning should be given to these general assertions? To what extent are they applicable to the administration clergyman [58]?
Without dwelling on this work, let us look at its conclusion:
To summarize, we can say that 1) The administration can never act « contra legem », that is to say that its acts must always be compatible with the legal; 2) it must act « secundum legem », according to the law, but it can do so in several ways, because sometimes it is limited to apply or to execute the law, other times she exercises a power autonomous » Intra limited legis », in the framework defined by the Act, in pursuing its own purposes, as it considers appropriate [59]
In this way, Edouardo Labanderia explained that there is a discretionary power of administration, within the limits of the law, and it is not to be confused with arbitrary power that does not respect positive law, or its spirit and purpose. He noted that, especially in our time, jurists insist on the need to put limits on administrative power, submitting it to justice. In this regard, he considered that the theory of abuse of power, originally developed in the jurisprudence of the Council of the French State, represented an important victory in the history of administrative justice.
As for administrative canon law, Ladanderia recalled that the principle of the legality of administrative acts is also in force within the Church, but in a slightly different manner, since all the powers are limited from above by their divine origin, and from below by the salvation of souls, and that « in the canonical order, legal formalism has never been decisive. »
Philippe Toxé analyzed the situation in a realistic way:
If do not lack the objections to the recognition of a right of the city to the principle of legality in the canonical order, the arguments that demonstrate the receipt of this principle in the canonical system we seem to prevail […] but still it is necessary that the faithful recipients of these standards or these decisions can efficiently and effectively, and with a certain hope of success, borrow the various remedies which exist in theory[60]
According to Labanderia, canonical jurisprudence is established between legitimate discretionary decisions, and illegitimate arbitrary decisions, without raising particular difficulties in this regard. We would object that, when an appellant « claims that the contested act has violated any law, in its decision or in its procedure[61] » the Supreme Tribunal may find that in the absence of any positive law clearly having been violated, the recourse is unfounded. Similarly, there is serious doubt that illegitimate arbitrary decisions can really be the object of administrative recourse that would allow for its reform.
Another way to address the legality of the decrees of the Church is, according to Patrick Valdrini, to check whether they comply with the principle of rationalitas, which he defines as follows:
It is a quality of the activities of the Church which affects the acts of government and in a general way all acts for the exercise of the functions of the Church as it ensures that they achieve the specific purpose of the Church, respecting its institutional characteristics[62].
Valdrini says that with regard to administrative acts, the respect of the principle of rationalitas requires that they be sufficiently motivated, as is also required by canon 51:
Can. 51 A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision.
We will see that there is indeed jurisprudence from the Supreme Tribunal in this regard.
2.2.3. Acts subject to recourse
In order to know which administrative acts are subject to recourse, let us first observe that the wording of the law has evolved during the period we are studying. In 1967, article 106 of Regimini Ecclesiae Universae stated that:
- – In the second section, the Apostolic Signatura installment the disputes arising from the exercise of the ecclesiastical administrative power, as well as those that are submitted in appeal against a decision of a competent Dicastery, when he is accused of having violated the Act[63].
This article is the subject of an authentic interpretation[64], in accord with canon 17 of the 1917 Code. It thus appears that a decision by a Dicastery is subject to recourse even in the absence of a decision of a lower authority, that the violation of the law which it is question can concern either substance or procedure (error iuris sive in procedendo sive in decernendo), and that the Second Section is competent to judge the illegitimacy of an administrative act, but not its merits.
Between 1967 and 1988, a controversy focused on recourses against illegitimate administrative acts that had first been issued by a lower court, and then approved by a Dicastery. Some canonists hold that in accord with Article 106, administrative acts by a Dicastery are not subject to recourse, since formally, they are not the ones who have violated a law, but rather those of the lower-level tribunals. Cardinal Staffa[65], Isaac Gordon[66] and Zénon Grocholewski[67] all claim the contrary, asserting that the two types of acts can be appealed[68]. Their position has been upheld, since Article 123 of the 1988 Apostolic Constitution Pastor Bonus confirms this interpretation, abrogating the text of the previous Constitution.
Another controversy focused on whether or not it is necessary to involve other parties besides the Dicastery in the resolution of conflicts. The Supreme Tribunal responded that it is, because the respondent is not the Dicastery that approved the act, but the lower-level authority that promulgated it[69].
Based on these first findings, let us examine more closely the evolution of the formulation of the types of administrative disputes that are subject to recourse:
- On 15 August 1967, Regimini Ecclesiae Universae (REU) indicated that the second section of the Apostolic Signatura would resolve » disputes arising from the exercise of ecclesiastical administrative power… »;
- On 23 March 1968, article 76 of Special Norms of the Supreme Tribunal stated that « The second section of the Apostolic Signatura recognizes: 1) disputes deriving from an act of ecclesiastical administrative power« ;
- On 25 January 1983, canon 1445 specified that « The Supreme Tribunal of the Apostolic Signatura adjudicates […] conflicts which have arisen from an act of ecclesiastical administrative power, » while canon 1732 relating to administrative remedies considered « all singular administrative acts which are given in the external forum outside a trial« ;
- On 28 June 1988, article 123 of the Apostolic Constitution Pastor Bonus[70] eliminated the formulation of canon 1445 in favor of canon 1732, specifying that the Supreme Tribunal hears recourses « Against all administrative acts individuals brought by the Dicasteries of the Roman Curia or approved by it…« ;
- On 30 April 1999, the general regulation of the Roman Curia refers simply to Pastor Bonus, specifying the role of the Dicasteries;
- On 21 June 2008, the proper law of the Supreme Tribunal says that it hears « remedies interposed […] against administrative acts individuals, either worn by the Dicasteries of the Roman Curia, either approved by them…[71]»
Given these developments, it is necessary to pay attention to the dates of comments made by canonists. Additionally, one cannot be sure that the definition of acts subject to recourse, provided in 1978[72], is always current. For our part, we will first examine the administrative acts subject to acministrative recourse, without ignoring the other « disputes arising from the exercise of ecclesiastical administrative power » which do not fall within the scope of the proper law and which, for this reason, are not subject to administrative recourse.
To distinguish them from other acts subject to administrative recourse, it is appropriate to refer to the work of Ulrich Rhode, who demonstrates with many arguments that there is a whole series of acts having the appearance of administrative acts, but which are not clearly subject to administrative recourse. Here is a summary:
- Acts which are not placed in the name of the Church, such as the acts of private associations of the faithful or private foundations;
- Acts of a legislative or judicial nature, such as changes in the constitutions of an institute, or the expulsion of members of associations;
- General acts which are the subject of canons 35-93;
- Information, advice and admonitions that have no legal nature;
- Contracts;
- Acts by persons who have not received the power of governance, such as vicars, superiors of the congregations not of pontifical right, laity, etc;
- Acts by persons having received power of governance, such as the Ordinary, but who do not exercise it in specific cases, such as when they are acting in the place of a parish priest when that office is vacant.
- Recourse Procedures
In canon law, recourse procedures can follow two tracks, the administrative track and the judicial track, as indicated in the summary table below:
|
Judicial Procedure |
Administrative Procedure |
| Sacramental law |
Nullity process |
Convalidation, Sanation |
| Penal law |
Sanctions |
Sanctions |
| Administrative law |
Contentious Administrative Recourse |
Administrative and Hierarchical Recourse |
| Other laws |
Ordinary process |
Recourse |
The procedure in general follows these four phases:
- The introduction of recourse under the form of a libellus, specifying the question which the Tribunal must answer. This is called the contestatio litis;
- The instruction of the case, designed to gather the evidence provided usually by the appellant, since the procedure is adversarial;
- The discussion, consisting of an exchange of documents, arguments and opinions, generally in written form; and
- The decision, which concludes the judicial intervention.
In secular administrative law, Rodolphe Dareste, Counsel to the Council of State and the Court of Cassation, concluded his treatise on French administrative law of 1862 with an exhortation in favor of administrative justice:
Administrative justice is certainly the most effective guarantee that can be given to persons subject to an administrator, against that administrator. This is not only the most effective guarantee, it is the only one that can be given. […] Thus this is not an administrative justice contrary to political freedom; it is Administration when it leaves its sphere and invades the field of personal initiative[73].
In canonical administrative law, William L. Daniel began his article about the doctrinal contribution of Cardinal Grocholewski to the notion of canonical administrative justice in a similar way:
The justice system ecclesiastical figure among the institutions the more dynamic rapidly introduced in the ecclesiastical law after the Second Vatican Ecumenical Council, i.e. the claim of subjective rights which would be reported injured by an Act of the administrative authority allegedly illegitimate[74].
A small working group was created in 1969 to prepare an outline of the reform of the Code of Canon Law with regard to administrative acts and contentious administrative acts. The outline that was produced on 16 November 1970[75], included three types of measures: recourse to the hierarchical superior; recourse to an administrative Tribunal within each Episcopal Conference; and legal action for reparation of damage in case of a violation of a right of the faithful. The schema was submitted on 20 April 1972. Bishops and to the Dicasteries were asked to comment on the measures relating to administrative acts, on the interest of constituting local administrative tribunals and on the grounds of nullity of administrative acts[76]. The Dicasteries and the Episcopal Conferences feared that the administrative courts would obscure their own authority[77], by possibly equating too easily a recourse against an administrative act, with a challenge to their doctrinal authority[78]. They also stressed the practical difficulty in creating administrative tribunals in every diocese and the fact that the grounds for invalidity mentioned in the proposal were too vague[79]. After various adventures described in detail by Sergio Aumenta[80], the 1983 Code distinguished for the first time the triple character of the power of governance, namely, the legislative, executive and judicial powers (c. 135 §1). In addition, canons 149 §2 and 1400 §2 explicitly mention the intervention of an administrative tribunal, without imposing or excluding the establishment of national or diocesan administrative courts[81].
3.1. The Organization of Justice
During the period under study, the Magisterium adopted several texts regulating the administrative justice of the Church:
- On August 15, 1967, Pope Paul VI promulgated the Apostolic Constitution Regimini Ecclesiae Universae[82] which reorganized the Roman Curia. Its Articles 104 to 108 govern the Supreme Tribunal of the Apostolic Signatura;
- On February 28, 1968, Pope Paul VI approved the general rules of the Roman Curia[83], containing provisions relating to administrative remedies, which included forbidding the Dicasteries from submitting decrees for the approval of the Pope so long as the time limit for recourse (30 days at the time) had not yet expired;
- On 23 March 1968, Pope Paul VI approved the proper law of the Supreme Tribunal on an experimental basis, based on Article 108 of the Apostolic Constitution Regimini Ecclesiae Universae. It described in particular the operation of the second section[84];
- On 11 January and 1 July 1971, 1 July 1976 and 7 July 1977, the Pontifical Commission for the the Interpretation of the Texts of the Second Vatican Council pronounced on two passages of the Apostolic Constitution Regimini Ecclesiae Universae, and provided details concerning the contentious administrative procedure[85];
- On 13 November 1975, Pope Paul VI extended the proper law of the Supreme Tribunal;
- On 25 January 1983, Pope John Paul II promulgated the Apostolic Constitution Sacrae disciplinae leges[86], which declared that the 1983 Code of Canon Law would take effect on the first day of Advent 1983. This new code reforms procedural law (ex: c. 1402), thus making necessary a revision of the proper law of the SupremeTribunal[87];
- On 21 March 1986 and 22 April 1987, the Commission for the Authentic Interpretation of the Code of Canon Law[88] pronounced twice on issues concerning administrative recourse regarding the resignation of religious, members of societies of apostolic life and secular institutes[89], and then on the legal personality of associations of the faithful;
- On 28 June 1988, Pope John Paul II promulgated the Apostolic Constitution Pastor Bonus, which specifies the competences of the Curia, and in particular those of the second section of the Supreme Tribunal, now governed by article 123. It is important to note the deletion of the pre-existing constraint that only the Cardinals can be judges; a clarification of the concept of violation of the law and the introduction of reparation for damages, which can supplement the initial application in cases where the contested law would be considered to be invalid;
- On 18 October 1990, the Code of Canons of the Eastern Churches was enacted, entering into force on 1 October 1991;
- On 30 April 1999, the new general regulation of the Roman Curia simply refers everyone to Pastor bonus, specifying the role of the Dicasteries;
- On 15 and 16 November 2007, the Plenary College of the Apostolic Signatura adopted the schema of the new proper law of the Supreme Tribunal, which Pope Benedict XVI approved the June 21, 2008, and enacted on 1 August with the Motu Proprio Antica Ordinatione[90].
Restricting ourselves to the Latin Church and omitting the changes for the general regulation of the Roman Curia, it results in an organization of the period under study into five main periods:
A thorough study of all these periods would require lengthy discussions that other authors have already addressed before us[91]. We will therefore limit ourselves to presenting two aspects:
- A synthetic presentation of the procedure, described below, to allow readers to know the main themes, within the framework of the law in force;
- A return to the practical implementation of the procedure, described in Chapter 9, from the practical cases encountered in the section regarding casuistry.
Currently, canon 1400 §2, located in the introduction of Book VII on trials, distinguishes three channels of recourse that are the classic judicial track, which is not applicable to administrative acts; and the two administrative and judicial tracks, which constitute the mode of administrative justice.
Can. 1400 §1. The object of a trial is:
1° The pursuit or vindication of the rights of physical or juridic persons, or the declaration of juridic facts;
2° The imposition or declaration of a penalty for delicts.
- 2. Nevertheless, controversies arising from an act of administrative power can be brought only before the superior or an administrative tribunal.
The procedure of administrative remedies referred to in § 2 is the subject of canons 1732 and following:
Can. 1732 What is established in the canons of this section concerning decrees must be applied to all singular administrative acts which are given in the external forum outside a trial excepting those which have been issued by the Roman Pontiff or an ecumenical council.[92].
The organization of administrative justice in the Church, and its evolution during the period under study, are described in the various texts governing the second section of the Supreme Tribunal of the Apostolic Signatura, mentioned above. William Daniel identified five main characteristics of ecclesiastical administrative justice: 1) the shared responsibility and collegiality of judges; 2) the search for moral certainty and equity; 3) the canonical secrecy of deliberations; 4) the possibility of recourse; 5) the right to defense[93].
We can also mention three levels of administrative appeals against decisions of the Government of the Church, namely a first level of ex gratia recourse, which allows the parties to seek an amicable solution; then phases of hierarchical recourse and litigation, in accordance with the diagram below.
3.2. Administrative and Hierarchical Recourse
The steps described below are not yet considered contentious, because they do not appeal to the second section of the Supreme Tribunal of the Apostolic Signatura.
3.2.1. Administrative Recourse (Remonstratio)
To avoid conflicts, Pope Francis recommends the practice of the Beatitudes:
If in our communities there were more of the poor in spirit, there would be fewer divisions, disagreements and controversies! Humility, like charity, is an essential virtue for living together in Christian communities[94].
And Pope Benedict XVI recalled the importance of judicial instruments like administrative recourse:
If it is indeed true that injustice should be confronted first of all with the spiritual weapons of prayer, charity, forgiveness and penance, nonetheless it cannot be excluded in certain cases that it is appropriate and necessary for it to be addressed by procedural means. The latter constitute above all occasions for dialogue which sometimes lead to harmony and reconciliation. It is not by chance that the procedural norms provide that in limine litis, indeed, at every stage of the trial, an opening and an opportunity be offered so that, “whenever someone feels injured by a decree, there not be contention between this person and the author of the decree but that care be taken by common counsel to find an equitable solution between them, perhaps through the use of respected persons in mediation and study so that the controversy may be avoided or solved by some suitable means” (CIC, can. 1733 § 2). To this end initiatives and norms are also encouraged which aim at establishing offices or councils whose duty, according to norms to be established, is to seek and suggest equitable solutions (cf. ibid., § 2)[95].
The interested party must, however, pay very careful attention to deadlines, because the search for an agreement by dialogue can impede any subsequent recourse. At the risk of being prevented from taking recourse, the appellant must write to the author of the decree or to his superior, within ten days from the time that he learned of the disputed act, and and he must retain the evidence, in order to show that he has respected canon 1734:
Can. 1734 §1. Before proposing recourse, a person must seek the revocation or emendation of the decree in writing from its author. When this petition is proposed, by that very fact suspension of the execution of the decree is also understood to be requested.
- 2. The petition must be made within the peremptory period of ten useful days from the legitimate notification of the decree[96].
Once the appellant has written, he must continue to monitor the time limits so as not to risk being prevented from taking recourse[97]. If at the end of thirty days of silence after the last notification which he has retained as evidence, he has not taken the initiative to write to the higher in a period of ten days according to can. 1735:
Can. 1735 If within thirty days after receiving the petition mentioned in ⇒ can. 1734 the author of the decree communicates a new decree by which he either emends the earlier one or decides that the petition must be rejected, the time limits for making recourse run from the notification of the new decree. If the author makes no decision within the thirty days, however, the time limits run from the thirtieth day.
Care must also be taken when having recourse to mediation, because if the dialogue is prolonged, or if the hierarchy orally proposes a dialogue right before the deadline for appeal, the appellant will find himself out of time to make recourse later.
In chapters 9 and 10 we will discuss the manner in which this phase of contentious administrative recourse occurs in practice, with or without mediation.
3.2.2. The First Hierarchical Recourse
When the author of an administrative act responds with a refusal, or does not respond at all within thirty days to the appeal, the appellant must make hierarchical recourse to the Ordinary or to the Superior General, in accordance with Canon 1737:
Can. 1737 §1. A person who claims to have been aggrieved by a decree can make recourse for any just reason to the hierarchical superior of the one who issued the decree. The recourse can be proposed before the author of the decree who must transmit it immediately to the competent hierarchical superior.
- 2. Recourse must be proposed within the peremptory time limit of fifteen useful days which in the cases mentioned in can. 1734, §3 run from the day on which the decree was communicated; in other cases, however, they run according to the norm of can. 1735.
The exercise of this right is not neutral, because it indicates a controversy:
Yet the hierarchical recourse has a act in mode of controversy. It is of two subjects which are in conflict: on the one hand the competent authority, in the exercise of its administrative function, and the other a subject […] concerned by the Administrative Act[98].
In addition, the appellant will not be mistaken with regard to the hierarchical superior, knowing, for example, that some religious houses depend of the Local Ordinary, while others depend on the Superior General of their congregation[99].
3.2.3. Hierarchical Recourse to Rome
Once the first hierarchical recourse has been formulated, the appellant must await either a response or a silence during the period of thirty days as per canon 1735. Then he can make hierarchical recourse within fifteen days to the competent Dicastery of the Roman Curia.
Without entering into details, as Mario Marchesi maintains, we will limit ourselves to observing that it must not be sent to the wrong Dicastery. It will not necessarily be the Congregation of Bishops which will be competent to address the administrative act of a bishop, but rather the Congregation for the Clergy if the substance of the administrative act concerns this Congregation; the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life if it falls within their competence, etc. If difficulties arise, or when two Congregations each refer the matter to the responsibility of the other, the second section of the Tribunal resolves conflicts of jurisdiction under Article 107 of Regimini Ecclesiae Santae[100].
The competent Dicastery having been identified, it must apply its proper law which cannot contradict the general regulation of the Roman Curia of 30 April 1999. Chapter 10 lays out the procedures for the examination of recourses, and Article 134 specifies the terms:
- 134
- 1. When the topic of the plenary session or ordinary of the Dicasteries has focused on the definition of a dispute, the decision must be notified as soon as possible to the parties concerned. (Cf. Const. Ap. Pastor bonus, art. 156.)
- 2. A party who feels aggrieved can ask in the ten days useful, the revocation or amendment of the act concerned.
- 3. Only the regular plenary session may grant the revocation or amendment of the act concerned.
- 4. It is not possible to appeal against the acts approved by the Supreme Pontiff in the specific form (cf. CIC can. 1405 § 2 and 333 § 3 and CCEO can. 1060 § 3 and 45 § 3).
It should be noted that, contrary to the Supreme Tribunal, which is not competent to change an administrative act submitted within the framework of a contentious recourse, the Dicastery itself has this jurisdiction.
Once the hierarchical recourse has been made, if a negative response has been received from the Dicastery or if it does not respond within sixty days, the administrative procedure is complete. If no agreement has been found, Article 135 provides for the possibility of contentious recourse before the second section of the Supreme Tribunal of the Apostolic Signatura.
Art. 135 § 1. Against acts and decisions of the Congregation, the party who feels aggrieved, if she has the intention to challenge those, must likewise present in the ten working days of the notification, the application of the withdrawal or modification of the decision.
- 2. In all cases, in the thirty days, in accordance with the Act, an appeal may be made to the Apostolic Signatura.
3.3. Contentious Administrative Remedies
Let us leave the administrative phase in order to enter into the judicial phase, established on 15 August 1967, and we will analyze its fifty years of existence. First of all, here is a simplified presentation of the four phases of the litigation procedure.
3.3.1. Eligibility of Recourse[101]
Normally, any contentious administrative recourse arriving at the second section is registered (Protocoled) by the Chancellor, who gives it a protocol number in the form « Prot XXXX/YY CA, » in which xxxxx represents the incremental number of recourse; yy is the year of registration, while the letters « CA » specify that it is a case of contentious administrative recourse.
Without dwelling on the special norms in force from 1968 to 2008, we will speak of article 73 of the proper law specifying the information that a recourse must include:
Art 73. §1. The appeal must mention:
1° by which it is presented;
2° the act which is being attacked;
3° which is requested;
4° on what element of right it is based;
5° the day where was received the notification of the contested act;
6° the Signatura of appellant
1° the act which is attacked, unless the appellant does not;
2° the mandate regularly entrusted to a Avocat-Procurateur or demand, with the documents the supporting, for obtaining a free support.
In the event that one of the essential elements is missing, the recourse is dismissed in limine in accord with Article 76 § 1 of the proper law[102]:
Art. 76. § 1. The Promoter of Justice having been heard, the Secretary rejects in limine by a Decree the recourse which unquestionably and obviously lacks some critical element, such as:
1° The matter does not involve an administrative tribunal;
2° The appellant does not have a legitimate ability to appeal to justice;
3° The act that is said to be violated does not exist;
4° The deadlines to submit the appeal are passed.
Some recourses lack elements that are useful but not essential, that the Secretary will suggest that the appellant should insert, or he may suggest that the appellant should submit a new recourse without it being precluded because of the time limit[103]:
- 77. Being with the exception of s. 16, § 2, the Secretary shall set the time limit to submit again the remedy, if it contains defects which can be remedied.
In this way the appellant can obtain a delay in paying the fees required by Articles 30 and 31 of the proper law, after a possible decision on a request for assistance free of charge, or to give a legitimate mandate to an advocate-procurator if he failed to do so in the required forms.
Art. 16. § 1. The parties may institute legal proceedings only by a defender, i.e. a Advocate-procurator. § 2. But if a party which makes recourse, informed of the thing, has not constituted in the time limit set, nor has it provided a valid excuse or obtained free assistance, the Secretary said that the cause is outdated.
To legitimize his mandate, the appellant must apply to a church official or to a parish priest with documents attesting to his identity, in accordance with canon 1540 §1:
Can. 1540 §1. Public ecclesiastical documents are those which a public person has drawn up in the exercise of that person’s function in the Church, after the solemnities prescribed by law have been observed.
If the appellant does not comply with the set time-limits, the Tribunal will consider that the recourse has been abandoned and it shall declare the end of the procedure litis finite. In practice, there were many recources rejected in limine in the first years of operation, when the rules of procedure were still experimental. The Supreme Tribunal and the Pontifical Council for Legislative Texts have also contributed to clarifying and even relaxing them. Thus, the period of thirty days provided for by the special norms has been extended to sixty days in the Article 74 of the proper law:
- 74. § 1. The appeal must be submitted in a peremptory period of sixty days useful, from the date of the notification carried out of the Act [of the Dicastery]. § 2. Only the Roman Pontiff may grant a derogation from this deadline.
When a decree of rejection in limine is pronounced, articles 76 §3 and 77 of the law specify that the appellant is informed of his right to appeal against the rejection within ten days, and, if applicable, within what time-frame and under what conditions the appellant may submit a new recourse.
3.3.2. The Admissibility of the Recourse
If the recourse has passed the first step of eligibility, the examination of its admissibility, described in Articles 79 to 82 of the proper law, includes 9 steps:
- Notification of the decree to the competent Dicastery and a request to send a copy of the contested act and all the acts concerning the controversy;
- Constitution of a Promoter of Justice for the cause;
- Information of the appellant and his successors in title as to what they have to do;
- Possible designation of an advocate-procurator, in those cases where the Dicastery concerned does not name one,
- Setting a time limit for the counsel to the appellant to submit his brief;
- At the end of the first deadline, setting a time limit for the advocate of the oposing party (the Dicastery) to transmit in turn his own brief and possibly produce new documents;
- Reception of the brief votum pro rei veritate of the Promoter of Justice;
- Possibility for the advocate-procurators of the parties to respond within ten days, and, lastly, for the Promoter of Justice;
- Setting the date when the Congress will examine the cause and inform the interested parties.
Once the advocate-procurators of the two parties have completed the obligatory formalities, the decision on eligibility is then made in accordance with Article 83 of the proper law:
Art 83 § 1. The Congress having been convened according to the norm of article 40, the prefect decides if the appeal may be admitted to the discussion or if it should be rejected because it is clearly lacking in foundation or presupposition. In this case it outlines the reasons.
If the recourse is considered to be unfounded and not admissible, the decision of the Prefect can itself be the object of a specific recourse, according to Article 76. § 3 and § 4 of the proper law:
- 3. The part which is appeal is informed by the same decree that she has the faculty to use the Congress in a peremptory period of ten days from the date of its receipt.
- 4. The decree by which the Congress confirms the rejection in limine is likely to No cure of law.
3.3.3. Examination of the Merits of the Recourse
If the recourse is admitted to discussion, it is carried out in ten stages, in accord with articles 85 to 90 of the proper law:
- Convening of advocate-procurators and the Promoter of Justice for a brief oral discussion;
- Issuance of the decree of joinder of the issue by the Secretary;
- Eventual resolution of exceptions raised by the advocate-procurators or the Promoter of Justice;
- Establishment of a summary of the acts of the case;
- Presentation of the conclusions of the advocate-procurators within the established time limit;
- Presentation of the votum pro rei veritate by the Promoter of Justice;
- Possible response of advocate-procurators within ten days;
- Deliberation of the College;
- Sentence of judges, including if necessary the immediate and direct effects of illegitimacy;
- Sending of the decision to the parties concerned.
This results in a decision which may fall into four broad categories:
- The recourse is dismissed, because it is regarded as without foundation;
- The recourse is accepted, with a finding of a violation of the procedure (in procedendo);
- The recourse is accepted, with a finding of a violation of substantive law (in decernendo); or
- The recourse is accepted, with a finding of a violation of the Act in both substance and form (in decernendo and in procedendo).
In the last three cases, the finding of a violation of a law entails consequences which are sometimes the subject of a new stage of the recourse procedure.
3.3.4. The Consequences of Recourse
In the conditions provided for by articles 95 to 100 of the proper law, a suspension of the execution of the administrative act concerned may be pronounced by the Congress even before the decision of the College.
When the Supreme Tribunal has recognized the illegitimacy of an administrative act, it sets out the modalities of execution, in accord with articles 90 to 94 of the proper law.
If a request for reparation of damages has been formulated to the College before the discussion, it is processed in accordance with Articles 101 to 103 of the proper law.
After this theoretical section, the second section of the book is devoted to the analysis of administrative case law for:
- The lay faithful and their associations;
- The clergy: deacons, priests and bishops;
- Religious, as well as their institutes;
- Other legal persons in the Church.
Before reaching this point, we will note the sources on which we support our analysis.
[1] Greiner (Dominique), « La justice » www.doctrine-sociale-catholique.fr/index.php?
id=6638 Article published on 22 November 2012 on CERAS www.doctrine-social-catholic.fr/index.php?id=6638 consulted on January 19, 2015.
[2] Paul VI (Blessed Pope), Speech during the solemn session of 20 November 1965, publicly inaugurating work on the revision of the Code. The precision is required, because the Code of Canons of the Eastern Churches of 1990 does not contain the second part of the sentence, where canon 1400 expresses the spirit applicable to transferring parish priests: « By observing the acquired rights and equity. »
[3] In this case, the provisions of canon 1647.
[4] Pastor Bonus, Art 15
[5] Francis (Pope), Apostolic Letter in the form of a Motu proprio “Mitis Iudex Dominus Iesus, on the reform of the canonical trial for the causes for the declaration of the nullity of marriage in the Code of Canon Law, » p. 1.
[6] Paul VI, (Blessed Pope) Address to the participants of the Second International Congress of Canon Law, September 17, 1973. See in particular the work of Léon del Amo and Carmelo of Diego Lorca.Translated from French.
[7] Cf. Léon del Amo and Carmelo de Diego Lorca
[8] Benedict XVI, Caritas Veritate, Rome, 29 June 2009, No 6.
[9] Cf. Preface of the Code of Canon Law of 1983.
[10] Namely the ex gratia appeal and hierarchical.
[11] Valdrini (Mgr. Patrick), La justice de l’Église, Conference given on 2 October 2016 to the French Academy of Moral and Political Sciences, www.asmp.fr/travaux/communications/2006/valdrini.htm. Translated from French
[12] Matthew, 5, 20.
[13] Benedict XVI, Caritas in Veritate No6
[14] Saint Isaac the Syrian, Translated from French.
[15] Benedict XVI, Speech to the participants of the plenary of the Supreme Tribunal of the Apostolic Signatura, 4 February 2011.
[16] Francis (Pope), talk on TV 2000 concerning the end of the Year of Mercy, Anne Kurian, Zénit, 20 November 2016.
[17] Jean-Paul II (Pope Saint), speech of 17 January 1998 to the Roman Rota.
[18]Preface of the Code of Canon Law of 1983.
[19] Benoît XVI Caritas in veritate, Rome 2009, ° 7.
[20] Canon 223 follows almost immediately canon 221, which recognizes to the faithful the right to justice, that is to say the faculty to claim their rights.
[21] Salerno (Mgr. Francesco Saverio), in Aumenta (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia. Translated from Italian.
[22] Pompedda (Francesco), « La notion de droit dans l’Église » in La documentation Catholique, 15 juin 2013, No 2294, p. 581-591. Translated from French.
[23] Romita (Fiorenzo), « Fondamenti teologico-giuridici nella giustizia amministrativa nella Chiesa dopo il Vaticano II » in ME, 98 (1973), p. 336-341. Quoted by William Daniel, “The Doctrinal contribution of Zenon Grocholewski…”, p. 194-195,
[24] Aumenta (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 171-172. Translated from Italian
[25] Benedict XVI (Pope), Speech to the participants of the Plenary Assembly of the Court of the Apostolic Signatura, the Vatican, 4 February 2011.
[26] Arroba Condé (Manual J.) Diritto processuale canonico, Institutum Iuridicum Claretianum, Roma, Ediucrcla 199, p. 139/538.
[27] Toxé (Philippe), « Quel principe de légalité en droit canonique ? », in L’année canonique, tome LVI (2014-2015), p. 230 Translated from French.
[28] Hidulphe Bilali Banazebi : Défense des droits subjectifs des fidèles. Equité et légalité au canon 221 CIC 83, Paris, Harmattan 2015, p. 258/340.
[29] Gaudemet (Yves), Droit administratif, 20ème édition, Paris, L.G.D.J. ed, collection manuels, droit public, p. 21/544. Translated from French.
[30] Ibidem.
[31] We will use the term “secular law” rather than “civil law,” which can lead to confusion, considering it as the right of States as opposed to canon law, or as the right of persons as opposed to public law.
[32] 1 Cor. 6, 1.
[33] Descard Marie-Paule, e-mail of 13 November 2016 to the author.
[34] Cf. Cass. soc. 20 janvier 2010, translated from French.
[35] https://www.courdecassation.fr/jurisprudence_2/assemblee_pleniere_22/dite_baby_29565.html
[36] Bassett (William W.) « Christan rights in civil litigation: translating religion into justiciable categories », The Jurist 46 (229-288).
[37] Can. 22: Civil laws to which the law of the Church yields are to be observed in canon law with the same effects, insofar as they are not contrary to divine law and unless canon law provides otherwise.
[38] For example, the Conference of the Bishops of France published press release on 9 June 2017, where it took note of the implementation review of a bishop emeritus for the non-denunciation of pedophiles. While reiterating the importance of the presumption of innocence under French law, the EFC reiterated its confidence in French civil justice, its willingness to cooperate with it and its deep desire to welcome, listen to, and accompany the victims.
[39] Luke, 12, 13-14.
[40] Matthew, 19, 6.
[41] Jenkins (Ronny E.), « Diffamation of character in canonical doctrine and jurisprudence » in Studia canonica, 36 (2002), p. 453.
[42] Jean-Paul II (saint) Sacramentorum Sanctitatis Tutela www.virgo-maria.org/Documents/eglise-conciliaire/2001-04-30_JPII_Motu-proprio-Sacramentorum-sanctitatis-tutela.pdf
[43] www.vatican.va/resources/resources_norme_en.html,
[44] www.vatican.va/content/Francesco/it/motu proprio_/documents/papa-francesco-motu-proprio_20160604_come-una-madre-amorevole.html
[45] Coghan (Patrick J.) “The Protection of Rights in Hierarchical Churches: An Ecumenical Survey,” The Jurist 46 (1986), p. 205-228. His analysis focuses on the Episcopalians, Orthodox, Greek Orthodox, Lutherans, Methodists, and Presbyterians.
[46] Coghan (Patrick J.), The Jurist, 46 (1986) p. 227.
[47] Gherri (Paolo), « Introduzione al diritto amministrativo canonico. Fondamenti », Milan 2015, Giuffrè editore, 320 p. Extracts of p. XIII. Translated from Italian. In his book on the foundations of administrative canon law, Paolo GHERRI evoked different theories relating to the pastoral, canon law and discussions between the faithful and authority. He specified the extent to which the Catholic Church has a public administration, administrative law and administrative justice which offers the possibility of check the decisions of government. He then examined the principles, the method, and finally the applications of administrative canon law.
[48] Arroba Condé (Manuel J.) Diritto processuale canonico, Institutum Iuridicum Claretianum, Roma, Ediucrcla 199, p. 139/538 p, traduit de l’italien par l’auteur.
[49] Labandeira (Edouardo), Trattado de derecho amministrativo canonico, Pamplune, 1998 p. 397-600. Translated from Italian.
[50] The document relating to the principles for the revision of the Code of Canon Law was discussed at the first General Synod of Bishops, which took place from 30 September to 4 October 1967.
[51] Spinelli (Lorenzo), « L’atto amministrativo nell’ordinamento della chiesa » in Studia et documenta iuris canonici, No XI, Roma, Officium Libri catholici, 1984, p. 101-122. Translated from Italian.
[52] With the exception of canon 1520 §3, using the expression “administrative act” about the administration of ecclesiastical goods.
[53] It discusses mainly Title III on general decrees and instructions (canons 29 to 34), Title IV on individual administrative acts (canons 35 to 93), and secondarily Title V on statutes and regulations (canons 94 and 95), which represents a total of 66 canons..
[54] For example, the transfer of a parish priest, the recognition of an association of the faithful, the incardination a cleric.
[55] For example, the registration of a baptism in the baptismal registry, the publication of the acts of the Church, the notification of a decision…
[56] It considers as provisional the transfer of a parish priest by his bishop, insofar as this decision is subject to appeal to the competent Congregation, while it considers as final the decision of this Congregation, while admitting that he is nevertheless likely to appeal to the Holy Father. In another place, it evokes the acts involving a suspensive condition, distinguishing them from those which do not have it.
[57] Daniel (William), « The Art of God Governance », Montréal 2015, Wilson & Lafeur, 275 pages.
[58] Labandeira (Edouardo), Trattato di diritto amministrativo canonico, Atheneo Romano della Santa Croce, Milano, dott. A. Giuffrè ed. 1994, p. 164/ 560. Translated from Italian.
[59] Idem, p. 170/ 560.
[60] Toxé (Philippe), « Quel principe de légalité en droit canonique », L’année canonique LVI, 2014-2015, p.231 et 247.
[61] Cf. Canon 1732.
[62] Valdrini (Patrick) : Definition given during a speech in Saint Louis of the French in Rome, on Thursday, 14 April 2016, to teachers and students of the Faculty of Canon Law of Paris.
[63] Translated from Italian.
[64] Latin version in AAS 63, (1971), p. 329-330.
[65] Staffa (Dino), « Dissertationes de administratione iustitiae in Ecclesia” in Periodica, 61 (1972), p. 20-24.
[66] Gordon (Isaac), « Noarmae speciales Supremi Tribunali Signaturae Apostolicae » in Periodica, 59, (1970), p. 100.
[67] Grocholewski (Zénon), « Il processo contenzioso amministrativo pressa la Signatura Apostolica », in Forum, 7 (1996-II), p. 288.
[68] Grocholewski (Zénon), « Il processo contenzioso amministrativo pressa la Signatura Apostolica », in Forum, 7 (1996-II), p. 288.
[69] Supreme Tribunal of the Apostolic Signatura, « Declaratio of recursu Adversus Dicasterii decisionem Curiae Romanae, 9 November 1970, » in Periodica, 60, (1971), p. 329.
[70] Jean-Paul II, Pastor bonus, Latin text AAS 80 [1988], 841-923, 1967; 87 [1995] 588.
[71] Art 34 §1 of the Lex propria of the Supreme Court Cf. Benedict XVI Motu Proprio Antica Ordinatione, ASA 100 (2008) 513-538.
[72] Staffa (Card. D.) Praesupposita recursus ad Alteram Sectionem Signatrae Apostolicae, Periodica 67 (1978) p. 524-525.
[73] Dareste (Rodolphe), La justice administrative en France ou Traité du contentieux de l’administration, Paris, Auguste Durand ed. 1862, p. 674-686/688. Translated from French.
Legendre (Pierre), L’administration du XVIIème siècle à nos jours, Paris, PUF, Themis
[74] Daniel (William L.), “The doctrinal contribution of Zenon Grocholewski to the canonical notion of administrative justice”, Studia canonica, 46 (2012), p. 183.
[75] Acta commissionis, De procedura administrativa, Communicationes, II, 2 (1970), p. 191-195.
[76] Pontificia Commissio Codicis Iuris Canonici Reconoscendo, Schema canonum de procedura administrativa, Typis Polyglottis Vaticanis 1972.
[77] The mentality of the time considered it inconceivable that a bishop or a prefect of the Congregation could be judged by someone « lower » that he, although article 104 of Regimini Ecclesiae Santae required that the members of the Tribunal be Cardinals. Since 2008, Article 1 §1 of the proper law provides that it can be composed of Cardinals and Bishops.
[78] Cf. Corecco (Eugenio), « l’amministrazione della giustizia nel sistema canonico e in quello statuale », in Amministrazione della giustizia e rapporti umani. Atti del Convegno di Sassari (14-16 novembre 1986), Rimini 1988, p. 139.
[79] Communicationes, V, 3, (1973), p. 235-243.
[80] Aumenta (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia. Sergio Felice Aumenta conducted a work accepted in 1997 by the Faculty of Canon Law of Lateran University on the protection of the rights of the faithful in the procedures of Canon Law.
[81] Communicationes, V, 3, (1973), p. 235-243.
[82] Paul VI, (Blessed Pope), Regimini Ecclesiae universae. Latin text in AAS, 59, 1967, 885-928.
[83] AAS 60 (1968) p. 129-176. Articles 68 to 70, 91, 94, 95 and 122.
[84] Special Normae in supremo tribunali signaturae apostolicae ad experimentum servandae post constitutionem Apostolicam Pauli pp. 6. Regimini Ecclesiae Universae. Typis poliglottis vaticanis, 1968, 28 p.
[85] AAS, 63, 1971, p. 329-330.
[86] Jean-Paul II (Pope Saint), Sacrae disciplinae leges Apostolic Constitution endorsing the Code of Canon Law of 1983
[87] AAS 80 (1998), p. 1818.
[88] On 2 January 1984, it has replaced the Commission for the interpretation of the decrees of the Second Vatican Council.
[89] AAS 78 (1986), p. 1323.
[90] Benedict XVI Motu Proprio Antica Ordinatione, AAS 100 (2008) 513-538. Traduction française par l’abbé Baudot, in L’année canonique, 55, 2013, p. 21-65.
[91][91] A particularly clear synthesis was given by Zénon GROCHOLEWSKI, « Giustitzia amministrativa presso the Segnatura Apostolica, » in Ius Ecclesiae, 4 (1992), p. 3-22.
[92] This canon opens section 1 of Book V on the trial, devoted to recourse against administrative decrees.
[93] Daniel (William L.), “The doctrinal contribution of Zenon Grocholewski to the canonical notion of administrative justice”, Studia canonica, 46 (2012), p. 191.
[94] Francis (Pope), Angelus address of 29 January 2017.
[95] Benedict XVI (Pope), Speech to the participants of the Plenary Assembly of the Tribunal of the Apostolic Signatura, the Vatican, 4 February 2011.
[96] Can. 1734 §1. Before proposing recourse a person must seek the revocation or emendation of the decree in writing from its author. When this petition is proposed, by that very fact suspension of the execution of the decree is also understood to be requested.
- 2. The petition must be made within the peremptory period of ten useful days from the legitimate notification of the decree.
- 3. The norms of §§1 and 2 are not valid:
1/ for recourse proposed to a bishop against decrees issued by Authorities subject to him;
2/ for recourse proposed against a decree which decides a hierarchical recourse unless the bishop gave the decision;
3/ for recourse proposed according to the norm of canons 57 and 1735.
[97] A particular difficulty arises in countries where the Post Office does not operate or operates poorly, because several weeks can elapse between the sending and the receipt of a letter.
[98] Marchesi (Mario), « I ricorsi gerarchici presso i dicasteri della Curia romana », Ius eccclesiae, VIII, (1996), p. 77, translated from Italian.
[99] We will see in Chapter 6 that the consecrated are required to comply with specific rules on recourse.
[100] 107. – In this same section, it also considers the conflict of jurisdiction between the dicasteries of the Apostolic See; it knows of administrative affairs which are submitted to it by the Congregations of the Roman Curia; it examines the issues which are entrusted to it by the Sovereign Pontiff.
[101] Most of the authors omit the eligibility phase, or group it together with the admissibility phase, in considering that the first decision of the Supreme Tribunal is that of the Congress. As the analysis of case law will show below, the facts prove the contrary.
[102] In general, the term « proper law »designates the proper law of the Supreme Tribunal of the Apostolic Signatura.
[103] The deadline initially set at thirty days has been increased to sixty days by article 34 of the21 June 2008 proper law of the Tribunal.