Final Conclusion

Chapter 12: Final Conclusions

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

  1. Conclusion

One day, a lady stopped Cardinal Bertone in St. Peter’s Square and said to him:

I have learned that you will go to Cagliari, to hold a conference on justice in the Church. Well, let me tell you, there is no justice in the Church[1].

The developments of this book offer us a vision that is more positive than that, even if it is important to listen to statements similar to that of this lady, made by others as well:

The Church must listen, rise up, look on the pain and the expectations of people according to mercy, and it must do so without fear of purifying itself, looking assiduously for ways to improve[2].

Administrative justice in the Church is at work, as we have seen, and so we can rejoice. It is without a doubt still in progress, on procedural aspects mentioned in the previous chapter, but also on the following major themes:

  • In the face of more serious errors, where the necessary protection of victims could sometimes make us forget the right of defense of the accused;
  • In the face of private revelations and new religious movements, where the passion that generates the charisms sometimes entails judgments for or against them, even before a serious investigation is conducted;
  • In internal conflicts within particular Churches and religious congregations, where the procedures of dialogue and of mediation are sometimes ineffective, and so justice is sought only at the moment of exclaustration, transfer or expulsion;
  • In the recognition of associations of the faithful where the criteria of ecclesiality are applied with greater transparency;
  • In informing the Catholic faithful of the existence and functions of administrative justice, largely unrecognized.

This is the credibility of the Church, as Benedict XVI observed:

Ignorance of the Church’s teachings and its legislation on given subjects is harmful to the proper running of the life of the Church itself.[3]

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[4].

We had hoped that the year of the fiftieth anniversary of the second section would have permimtted making a prudent and measured step toward informing the faithful about their rights and obligations, as well as the means to defend them. Unfortunately, most of the canonical symposia held in 2017 focused on the centenary of the abrogated Code of 1917, [5] without any mention of the fiftieth anniversary of the creation of the Administrative Tribunal of the Church, currently in operation.

This silence does not date from today and, already in the past, the simple fact of informing the faithful of canon law was sometimes seen as a fault.

In 1850, Fr. Marie-Dominique Bouyx (S.J.), a well known canonist, published an article about the popularization of Canon Law in the daily paper L’Univers. His Bishop, Msgr. Sibour, furious, gave him twenty-four hours to leave his post of Director of the Marie-Thérèse retirement home, to which he had been appointed the previous year. […] The French Bishops are certainly not supporters of higher education in canon law, a law which risks prejudicing their authority, and which they intend to implement according to their personal views[6].

After the promulgation of the French law establishing freedom of higher education, on July 2, 1875, it was necessary to wait nearly five years and for several interventions of the Holy Father, so that at the beginning of the school year in 1880, the Faculty of Theology of the Catholic Institute of Paris at the time, created a faculty of canon law, with the young Abbot Gasparri as professor.

Despite a French context which remains generally unfavorable, even hostile to this « diaconia of justice » that the Holy Father and the Council of Cardinals have examined during the course of their 18th meeting[7], the present book could be published and many radio broadcasts relayed[8].

I would like to express my gratitude to the people who have taught me righteousness by their witness of life, those who have taught me canon law, welcomed me into the world of canonists and helped me in the preparation or dissemination of this book. In addition to my wife Sylvie, most of them are cited in the text, while others wished to remain anonymous. God bless you.

I also want to express my apologies for the shortcomings, imperfections and perhaps mistakes in this book, and I ask those who find them kindly to bring them to my attention[9], so that I can take them into account in the next edition.

Despite its imperfections, I hope that this book will be a useful instrument for the protection of the rights of the faithful and the common good of the Church, as Cardinal Pasinya indicated:

It is, therefore, an evangelizing mission to put the instruments necessary for the protection of the rights of the faithful at the disposal of the particular Churches[10].

To this effect, I dedicate this book to Canonists without Borders, which it is now appropriate to present.

  1. Canonists without Borders

Before the Second Vatican Council, the Encyclical Fidei Donum[11], on the renewal of the missions, was very important for the development of evangelization in Africa and in developing countries, where the Church is currently flourishing. It encouraged European priests to go to serve for a while in a mission diocese. Today this encyclical remains topical for priests, but also for the laity who are committed to a period as volunteers in Catholic missionary associations like the Foreign Missions of Paris. Therefore, why not apply it also to the canonists of developed countries, which include also a growing share of the laity?

Canonists without Borders is an international network of canonists, without any particular mandate of the hierarchy of the Church, but with the desire to promote canon law and ecclesiastical justice mainly in developing countries, and for the Catholic faithful.

Since its creation in 2015 Canonists without Borders initiated five types of services for free:

  1. Providing assistance to Ecclesial Institutions, specially in Africa;
  2. Providing useful information to canonists and Catholic faithful;
  3. Orienting the faithful and helping them to answer their questions;
  4. Contributing to solving ecclesial controversies;
  5. Creating a canonic on line library[12]

For the future, we will try to structure the Canonists without Borders’ network.

 

2.1. Providing Assistance to Ecclesial Institutions

As Canonists without Borders begins to be known, some institutions are calling it for different kinds of support.

Currently many Catholic entities are opening in developing countries and their work is increasing.

The Burkina-Niger Episcopal Conference has chosen pastorally to encourage the faithful to regularize their marital status, in particular to allow their children to receive baptism. The result is an unprecedented increase in the number of applications for the recognition of the nullity of marriage, which went from 10 per year on average from 2010 to 2015, to 200 applications for 2016 alone, in the Interdiocesan Tribunal of Ouagadougou. As a result of Mitis Iudex, each diocese has been invited to establish a diocesan tribunal or to choose a nearby tribunal.

Often, these courts face difficulties in their start-up, while others have difficulty in the use of information technology. To the extent that it can, Canonists without Borders strives to provide the aid mentioned below.

2.1.1. Handling Delayed Cases

In view of the implementation of the Apostolic Letter Mitis Iudex, offices are opening in various dioceses of Africa and the world. However, starting or restarting a formal office requires a lot of work that canonists sometimes have difficulty with. As an example, a newly appointed Judicial Vicar found in the archives of the Tribunal a hundred pending cases, with incomplete procedures to resume. The beginnings of assistance have already been made, with the drafting of a legal note preparing submissions by counsel and the defender of the bond in a local case. In the office of Thiès (Senegal), cases remained pending because the witnesses had moved to another country. Canonists without Borders found contact info for the offices in the countries concerned, and informed the office in view of rogatory letters.

This activity to support such offices should only continue to develop. As soon as Canonists without Borders will have enough members, it will also be able to conduct « Operation Lend a Hand, » to bring for a short period a group of European canonists onsite, to help start new offices.

Here are two testimonies:

  • Father F., official in Africa: “The members of the office charge me to say thank you, and we await another visit when the opportunity will present itself to you again. We will continue to maintain contact through the wedding records you went over with us in your capacity as a canonist.” (November 18, 2016) “Thank you again for the call to others, in order to intervene in one way or another to help us to make progress. Best wishes to you and God bless you.” (30 November 2016)
  • Sister M., judge in an African office: “Since I was elected Superior General, I have less time to deal with cases and I have, for example, stopped dealing with one of them, rendered complex by the fact that two of the witnesses had left the country. In February 2017, Canonists without Borders put me in contact with the offices in those countries where the witnesses now live, so that the can testify thanks to a rogatory commission.

In Burkina Faso, Mgr. Laurent Dabiré, Bishop of Dori and moderator of the ecclesiastical courts, has high regard for the initiative of Canonists without Borders. At a July 2017 meeting, a decision was made to experiment with having a defender of the bond or a lawyer at a distance. If the arrangement proves successful, a formal request will no doubt be addressed to francophone faculties of canon law for canon-law students who can work with Canonists without Borders  on real cases—whose names will be concealed, to prevent potential indiscretions—and not only on theoretical cases of nullity of marriage.

2.1.2. Other kinds of support such as mediation or training

In 2015, the Chancellor of Conakry asked Canonists without Borders to put online the website of the Archbishop, permitting the office to inform the faithful of the diocese. This has been done successfully.

In 2016, Institutions like those in Paris publish announcements in Catholic journals, to search for contact information for the parties or witnesses summoned in matrimonial proceedings. After searching on Facebook, Linkedin and social networks, Canonists without Borders has found traces of several persons sought and has informed the offices concerned.

In 2016, Canonists without Borders  shared its experience on the training of canonists during a conference-debate held in an African diocesan office. The presentation can be found on the professional part of the site www.canonistes.org  in connection with online formation proposals that are free or paid for to faculties of Canon Law.

In 2017, Canonists without Borders  has been called for a mediation between two parishioners of a Parisian parish, which is now on progress.

 

  • Providing useful information for canonists and faithful

Society becomes more and more complex, and canonists, just as other professions, have a growing need for information. Organizations such as the Pontifical Gregorian University are working to identify and make available to the public the main canonical resources existing in the world[13]. In its own way, Canonists without Borders also makes a contribution.

2.2.1. On-line collection of theses and books about canon law[14]

Society becomes more and more complex, and canonists, just as other professions, have a growing need for information. In this field, there is a great inequality between the privileged canonists installed in Rome or in a large city university, who have easy access to a canonical library, and those who are incardinated in distant dioceses and do not have this access. Here is an example of a request received:

Father F, Chancellor and official in Africa: “I am happy to learn that you have just published a book on administrative law. I hope that you will send me a copy of this valuable work. If you don’t, I will have no chance to read it. I am particularly interested in this book because since October 2016, I have been teaching administrative law in a large seminary.

As most of them have internet-access, Canonists without Borders has begun to create and put online a digital canonical library, in which it has already identified and indexed nearly 2 500 thesisand articles on line[15]  about canon law, indexing them by canon and by key word, to facilitate their identification.

Moreover, Canonists without Borders initiated a campaign to collect and publish thesis, briefs and canonical works in connection with the Harmattan publishing house and the distributor Youscribe. Authors are encouraged by various benefits to send a digital version of their memoir or thesis, that Canonists without Borders puts online so that the canonists and more generally the public can have access too it free of charge, for Canonists without Borders, or at low prices for Youscribe.

By entering in the search bar the number of a canon or a keyword such as « history » or « philosophy, » the reader immediately sees the theses of canon law relevant to this subject and, if there is a digital version, it can access the contents of a simple click.

Thank you to the readers who wish to participate in this campaign, by sending their thesis, encouraging their canonist-friends to do so, or helping with the idexation of thousands of theses already identified.

2.2.2. Compendium of Jurisprudence

Everywhere in the world, canonists seek Rotal jurisprudence, helping them to write the in iure sections of their decisions.

Abbot Jacques Gressier gave Canonists without Borders the French translations of rotal jurisprudence that he had collected and published in the canonical compendium of Arras. Some of this jurisprudence has been put online on the professional part of the site www.canonistes.org.

In Versailles, canonists use the compendium of case law of Msgr. Boyer to prepare their legal submissions in marriage-nullity cases. We hope that one day such work might be the subject of a book released in Africa, and that it be completed by an equivalent book for defenders of the bond, integrating the work and publications subsequent to Mitis Iudex.

Moreover, many canonists deplore the fact that the contentious-administrative jurisprudence of the Supreme Court is less accessible than the matrimonial jurisprudence of the Roman Rota. To help in remedying this deficiency, Canonists without Borders has put online a database of contentious-administrative case law on a thousand cases that can be accessed on the professional part of its website[16].

2.2.3. Good Digital Practices

Episcopal conferences such as that of Taiwan sometimes contact the Pontifical Council for Legislative Texts in order to determine the extent to which they are canonically permitted to use digital technologies, such as publishing baptismal registers in a digital version on the cloud. In addition to expertise in this field brought to various Dicasteries of the Roman Curia, Canonists without Borders has experimented with technologies such as Skype, Viber and WhatSapp, in order to assist petitioners at a distance, and electronic signatures for the secure exchange of documents. In addition to experimentation, Canonists without Borders has begun to establish and share a bibliography of experiences in the use of digital means for canon law[17].

2.3. Orienting the Catholic Faithful

Many dioceses provide precise information on the rights and obligations of the faithful within the Church, and on the means to enforce them in making use of the ecclesial structures provided for this purpose. Other dioceses are silent as to the mailing-address of the office which handles marriage-nullity trials, and so the faithful do not always know whom to contact when they encounter legal difficulties in their lives as Christians. Without in any way replacing the competent bodies of the Church, Canonists without Borders provides basic canonical information on its website www.canonistes.org, and responds to individual questions from the Catholic faithful, aiming to orient them toward good structures within the Church.

2.3.1. Discerning the Possible Invalidity of a Marriage

More and more frequently, couples in difficulty seek to discern the possible invalidity of their marriage before making a decision to separate. Canonists without Borders encourages them to identify and to meet in their diocese with persons from « the structure of information, advice and mediation » laid down by the Subsidium for the application of the Apostolic Letter Mitis Iudex, « for the investigation preliminary to the matrimonial trial. »

Once their civil divorce has been obtained, the laity look for information about how to engage in a canonical trial to recognize the nullity of their marriage. Canonists without Borders informs them of the procedures in force, and the competent offices which handle their situation.

2.3.2. Recalling the law currently in force

Approximately once a month, Canonists without Borders receives requests from Catholic faithful wishing to know what church law recommends.  Canonists without Borders strives to research the law in force, and to respond to them free of charge.  In ecumenical matters, inquirers have been informed of the main canons and of the Directory for the Application of Principles and Norms on Ecumenism[18].

The warm thanks received from inquirers allow us to think that we should persevere on this track.

2.3.3. Helping to resolve conflicts

Besides its interventions at the request of a parish priest or official, Canonists without Borders regularly receives requests from priests, religious or laity to resolve administrative conflicts with ecclesiastical authority. It is involved in these types of cases:

  • Faithful faced with defamation and slander by administrative authority;
  • Situations of tension and even harassment in a religious community or in a diocese, leading a priest to request excardination, or a religious to request exclaustration;
  • Faithful employed in the Church, from whom a new administrator withdraws their employment without clear reason;
  • Priests, religious or laity who left their assignment, who are left without means to start over in life;
  • Laity confronted with a plan for the sale of their church by the mayor of their village;
  • Faithful in difficulties with the civil authorities of their country, for example the intransigent secularism in France or Shariah in Islamic countries.

Canonists without Borders provides information on their rights and obligations and, when the situation warrants, helps them to follow the procedures for ex gratia, hierarchical or contentious-administrative recourse, allowing them to obtain excardination andincardination consistent with their skills and the needs of the Church.Here are a few examples of testimony received:

  • In Senegal, a bishop expelled a priest from his diocese based on testimony from his parishioners. Thirty years later, other parishioners gathered evidence and intervened with the bishop who had expelled the parish priest, and he recognized that the charges received had been slanderous;
  • Father F: “Bravo for your work! Imagine that I am for months under the blow of a slanderous denunciation, which would have meant nothing if it had not been made by [a Catholic university]. Do you know a canonist (preferably a priest, who would have more weight) who could help me to clarify matters? […] In the end, I accept all this and other tests as a salutary Cross […] fraternally, Abbot M.” (17 January 2017)
  • Father E: “May the Lord continue to bless your work for the good of the Church. All our congratulations for your work and the expansion of your site! You do good to our Church. Continue this year and the following. We remember with gratitude your listening and your answers concerning our rather unique situation. Since our meeting, I sent my recourse to Rome concerning my departure from religious life. I was expelled.” (3 February 2017)

A growing number of religious seek assistance in restoring constructive dialogue with their superiors. Canonists without Borders gives them moral support, clarifies their rights and obligations, and guides them to the appropriate bodies such as the French Welcome Mediation Service for Religious Life and Community (SAM) or the International Council of Canonists. In case of failure, it helps them to initiate the procedures of ex gratia, hierarchical or contentious-administrative recourse, to restore justice. Here are three examples of testimony received:

  • Sister JM, African religious: Thank you very much Uncle Yves, God bless you […] you are really an angel and I thank you with all my heart. (31 January 2017)
  • Brother JM, Trappist religious: Thank you very much for the closeness and interest that you showed me. This comforts me. Once again thank you for your welcome and for carefully listening. United in prayer. (7 February 2017)
  • Brother MJ I have surfed your book which has helped me in my difficult situation. I have recommended it to others and some have already obtained a copy.

 

Regularly, faithful find themselves in difficulty after being removed from an office in the Church, a diocese, a school or a religious congregation. On several occasions, members of Canonists without Borders have helped them to start afresh in life, as it is required to do by canon 222 § 2:

They [the faithful] are also bound by the obligation to promote social justice and again, remembering the commandment of the Lord, to aid the poor with their personal income.

 

The other religions, and in particular evangelicals and Muslims, very numerous in Africa, are faced with problems that are internal to their communities comparable to those that we encounter in the Catholic Church. When the opportunity presents itself, Canonists without Borders endeavors to develop dialogue between jurists of religions, so that they may help each other, in mutual respect, with a view to a better efficiency of their respective justice.

Here is an example:

In August 2017, an African bishop of a non-Catholic Christian church expressed his difficulties with some clergy of his diocese, because they would not follow episcopal instructions, or because they impose unjustified financial contributions on their parishioners. He asked for clarification of the proper Catholic canonical procedures on these matters, to better manage his relations with his clergy.

Conversely, we have seen that the mediation practices in force in certain Reformed Churches could prove helpful to Catholic bishops, in the face of controversy between different persons in their dioceses.

 

  • Structuring Itself Legally

As of 2017, Canonists without Borders is a private association of the faithful, without recognition or particular mandate of the Church.

It is sometimes perceived as a danger by the hierarchy of the Church, which may fear that Canonists without Borders and its members may take positions or act in ways that are likely to hamper them. This is not surprising, because it is in fact normal that an institution, of what type may be (secular or religious, public or private…) seeks to protect itself against actors working on the periphery, over whom it does not have control.

By letting them act, the Church takes the same risk that its Master, God the Father, Who created man with the free will to love, God the Son Who has redeemed man after his sin, and God the Holy Spirit Who inspires man to choose love, not sin.

In this spirit of love of the Church, Canonists without Borders submits to the ecclesiastical hierarchy in regularly submitting its activity reports, and taking account of the comments received. For the future, Canonists without Borders wants to develop its activity, with the assistance of volunteer canonists, and acquire a permanent legal structure[19], under the watchful eye of the Supreme Tribunal. As long as this condition is not met, Canonists without Borders and its members do not accept any gifts or payments, but continue their work of popularizing the law and canonical justice, in communion as closely as possible with the Church.

We are encouraged to persevere, by faithful who thank us for the aid received, by an African Catholic bishop, President of the Commission for Justice of his Episcopal Conference, who gave his imprimatur, or by a Cardinal Prefect of a Congregation, who wrote:

…I have received your very interesting book, Administrative Justice of the Catholic Church, that you had the kindness to send me, and I thank you. I take this opportunity to thank you for your initiative concerning Canonists without Borders, which saw the light

 

Another encouraging sign lies in the fact that canonists enroll without interruption in the professional part of the site www.canonistes.org, and/or ask to receive its quarterly newsletter. We hope that some of them will choose to devote their time (we do not accept money) and help us to reach more quickly our four objectives:

  • Promote canon law and justice in the Church;
  • Create a digital library of canon law;
  • Assist ecclesial structures of canon law;
  • Assist the hierarchy and the faithful to enforce their rights and obligations

 

  1. A last message

How does one say with simple words that the faithful must retain administrative justice of the Church?

First of all that the Church is holy but composed of sinners, and that conflicts are inevitable, including with the ecclesiastical hierarchy. When such conflicts occur, it is important not to be offended, but to forgive in accord with the example of Christ, Who suffered injustice and instructs us to forgive not seven times, but until seventy-seven times seven.

Always in accord with the example of Christ, Who spoke harshly to the Pharisees and drove out the money-changes in the temple, Christians must arm themselves with courage in the face of injustices inside the Church, so that they do not become an occasion of scandal for the weak.

In such cases, we recommend that the faithful appeal to the law and justice of the Church, following the following six steps:

  1. Pray, asking for the peace for oneself and for one’s opponent, and to discern the situation in the light of the Gospel;
  2. Talk to the author of the alleged injustice, to try to understand his point of view and explain to him one’s own;
  3. In the event of persistent disagreement, to appeal to a wise person to better discern the situation and, if necessary to intervene as a mediator[20], while taking the precaution of writing within ten days so as not to lose the right of appeal;
  4. If the injustice persists, make one or several hierarchical recourses, within the prescribed time limits, until obtaining a decision by the Roman Curia;
  5. If the injustice persists in violation of a law of the Church, to appeal to a canon lawyer and make administrative recourse.
  6. Whatever the decision, let us remember that a sentence in favor of a party will not be synonymous with victory, but a means to preserve communion, in favor of the reestablishment of the Truth[21].

[1] Bertone (Card. Tarcisio), « La Chiesa e l’impegno per la gustizia, » Studii Giuridici XLV, Libreria Editrice Vaticana, Città del Vaticano 1997, p. 8

[2] Turkson (Cardinal Peter Kodwo Appiah), Corrosione, Combattere la corruzione nella chiesa e nella societa, preface par le Pope Francis, Rome 2017, Rizzoli

[3]Mboma (Georges usus) Le droit canon face aux réalités africaines, L’Harmattan, 2013, p. 13/96 Preface by Matangila (Léon Musadila).

[4] Benedict XVI (Pope), Speech to the participants of the Plenary Assembly of the Supreme Tribunal of the Apostolic Signatura, the Vatican, 4 February 2011.

[5]Discussions at Santa Croce on March 13 in Rome, during the Consociatio of 4-7 October, and of ICP/SIDC 7-8 November in Paris.

[6]Imbert (Jean), La faculté de droit canonique (1895-1975), in L’année canonique, tome 38, 1995-1996, p. 286.

[7]Ovejero (Paloma García), vice-director of the Press Office of the Holy See, Zenit, 15 February 2017.

[8]23 and 25 February 2017 at Radio espérance and radio RCM in Dakar, 1 April at Radio Maria at Lomé (Togo), 4 April 2017 at Radio immacolata at Allada (Bénin), 6 October 2017 at Radio Vatican (Rome), 9 November 2017 at Radio courtoisie (Paris), 20 and 21 January 2018 at Radio ATM (90.5. Abidjan Port Bouet), and Radio Espoir (Ivory Coast).

[9] Write to yves.alain@canonistes.org

[10] Pasinya (Card. Monsengwo), archibishop of Kinshasa, in the preface of Kitambala, (Hilaire Iwaka), L’office de chancelier dans le Code de droit canonique de 1983, l’Harmattan, Paris 2017, p. 10 / 245.

[11] Pie XII, fidei donum, Rome, 21 April 1957.

[12] www.canonistes.org/biblio

[13] https://www.iuscangreg.it

[14] www.canonistes.org/biblio

[15] Unhappily, we collected only more generally title of thesis from varoous universities and not integral content. We thanks the Gregorian University and CSLA for their providing valuable information on-line.

[16] http://www.canonistes.org/canonistespro-inscription/

[17] La loi des hommes et la loi de Dieu : free online canon-law course proposed by the Institut catholique de Paris starting in January 2017.

https://www.fun-mooc.fr/courses/ICP/84002/session01/about

[18]www.vatican.va/roman_curia/pontifical_councils/chrstuni/general-docs/rc_pc_chrstuni_doc_19930325_directory_fr.html

[19] The current idea is to create a two-part structure, with an Executive Board composed of canonists acting voluntarily within the framework of Canonists without Borders, and a Supervisory Board composed of church leaders with the right to view the activity of the Executive Board, but without operational responsibility.

[20] In 2017, parish priests asked Canonists without Borders to conduct a mediation between parishionners.

[21] Bilali Banazebi (Hidulphe) : Défense des droits subjectifs des fidèles. Equité et légalité au canon 221 CIC 83, Paris, Harmattan 2015, p. 258/340.

Conciliation and Mediation

Chapter 10: Conciliation and Mediation

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

In order to maintain ecclesial communion, the leaders of the Church normally ensure the agreement of affected parties before adopting acts of governance. This is why, in some cases, prior consultation is one of the conditions for the validity of an act[1]. But in practice, leaders do not always take sufficient time for consultation in advance, mostly because it is not always easy to reconcile all points of view, including when a decision involves several actors[2].

This is the reason why it is inevitable that tensions occur at the promulgation of certain administrative acts. The normal route for the resolution of these tensions is again one of dialogue, when the act is enacted and one of the parties concerned declares that there are difficulties in its application. This may be done in an informal manner, or in application of canon 1734, during the ex gratia recourse which aims for direct conciliation between the two parties concerned, rather than making hierarchical or contentious-administrative recourse.

Authors such as Jean Schlick argue in favor of a greater involvement of the Church during the ex gratia recourse relating to administrative acts:

Can we imagine in the Church an interpretation of the confirmation of an administrative act, which does not incorporate all the conciliation efforts independently of their origin and their insistent repetition, especially when they take the traditional form of an ex gratia recourse? [3]

Yet, when for one reason or another[4], the two parties fail to reconcile their points of view, canon 1733[5] then invites the parties to use « the mediation and effort of wise persons » to find an equitable solution.

Having recalled the importance of prior consultation and direct conciliation a posteriori, we will concentrate, in this chapter, on the practice of mediation to resolve the tensions resulting from administrative acts, and avoid disputes or, at least, allow the parties to reconcile before the decision of the Supreme Tribunal.

First let us observe that the doctrine according to which Christians have a duty to avoid litigation is not new (cf. Mt18, 15-16), and it is not limited to contentious-administrative recourse, since it is mentioned in the section of the code pertaining to general procedures, in canons 1446, and 1713-1715:

  • Canon 1446[6] asserts the need to avoid disputes, and provides for the use of mediation[7] to reach an agreement between the parties[8].
  • In cases where the process concerns the private good of the parties, canon 1713[9] does not mention “mediation” but speaks rather of a reconciliation[10] or an agreement[11] in order to reach a conciliation[12], knowing that canon 1714 partially explains the rules that are used[13].

 

  1. Ecclesiastical Mediation

Paul Vincent Kasongo analyzed in detail the methods of resolving ecclesial conflicts in the primitive Church (Mt 18, 15-17 and Co 6, 1-8), the resolution of the dispute by transaction or conciliation according to the canonical tradition, the process of finding a compromise between the two parties to the conflict through an equitable solution governed by canon 1446 of the 1983 Code, and finally, the application of the principle of avoiding disputes in marriage trials and in the context of administrative recourse[14].

In fact, no canon addresses mediation in Part IV on the criminal trial, because canon 1715 excludes mediation when the public good is in question. We find, however, a canon on mediation in Part V of Book VII of the code, devoted to the « procedure in administrative recourse and in the removal or transfer of pastors.” It is canon 1733[15], which invites the faithful to seek a fair solution using “the mediation and efforts of wise persons. »

One might think that the Supreme Tribunal received a mission to promote the resolution of conflicts through mediation, but it did not. Articles 121 to 125 of the Apostolic Constitution Pastor Bonus entrust to the Supreme Tribunal of the Apostolic Signatura the responsibility to ensure the proper application of all procedures that contribute to the proper administration of justice in the Church, but they do not refer to mediation:

This Dicastery exercises the function of Supreme Tribunal and ensures the proper administration of justice in the Church[16].

The same Tribunal, it also obliged: 1° to exercise vigilance over the correct administration of justice…/…[17].

To perform its mission, the Tribunal conducts an annual survey of the courts of the Church[18], but this investigation does not address in any way administrative justice, in which hierarchical recourses are instructed by the bishops and not by diocesan or interdiocesan Tribunals.

Article 78 of the proper law of the Supreme Tribunal provides for the possible end of a dispute in the course of the trial by a peaceful arrangement between the parties, and it requires the approval of the Congress. It does not specify the role of the Tribunal as a mediator to facilitate the search for solutions.

Nonetheless, the 1986 activity report of the Holy See lists mediation as one of the three major activities of the second section of the Supreme Tribunal of the Apostolic Signatura:

In terms of contentious-administrative recourse, the Apostolic Signatura, from the beginning, has been in favor of intense activity of peaceful discussion between the parties so as to avoid disputes. Canon 1446 § 1 of the CIC provides that « all the Christian faithful, and especially bishops, are to strive diligently to avoid litigation among the people of God as much as possible, without prejudice to justice, and to resolve litigation peacefully as soon as possible. » The intervention of the Signatura in this area has allowed for the peaceful resolution of old quarrels; and more particularly the complex controversies that occurred during the Holy Year, in the spirit of reconciliation desired by the Holy Father, and as the Code of Canon Law says in canon 1733, §1. » [19]

It is surprising that there is little mention of any activity of mediation in the activity reports for following years. A few cases, however, should be noted:

  • The 1976 report indicates: « Various cases have been resolved by the initiative of the Supreme Tribunal, which has found a way to an agreement between the parties[20]. »
  • The 1978 report explains that few recourses follow the complete route up to the decision of the Cardinals gathered in Plenary, in particular « because they have found a peaceful solution proposed by the Signatura and accepted by the two parties[21].”

Here is an example of this activity of mediation:

The archivist of the Diocese of Naiera, Spain, filed a recourse concerning ecclesiastical real estate, claimed by both the diocese and a religious congregation. His recourse was rejected, but the Ordinary of the diocese intervened and requested a final decision by the Supreme Tribunal. It invited the parties to seek an agreement at the local level. Discovering that this attempt was not successful, the Tribunal decided to admit to discussion the recourse lodged by the Ordinary[22].

 

In the absence of rules laid down by the proper law, we can regret however that sometimes, the Tribunal does not listen to the appeals for mediation which are addressed to it.

The superior of a Carmel phoned a neighboring house, and asked the lady of the house to prevent her husband from going to the daily Mass at Carmel, and his family and friends. They filed an ex gratia recourse, asking for the reasons for his exclusion; but neither the superior of the Carmel nor the Bishop on which it depends would respond. They then filed a hierarchical recourse, and then a contentious-administrative recourse against the unwritten administrative act of the superior and, during the contentious-administrative recourse procedure, they asked the Supreme Tribunal to intervene directly or indirectly (through a Carmelite volunteer) to restore dialogue broken by the willingness of the hierarchy.  The Tribunal, however took no account of this request, and made a decision of non-admission of the recourse to the discussion, for obvious lack of foundation[23].

One can partly explain the refusal of the Supreme Tribunal to be involved in mediation procedures, because mediation should normally take place at the diocesan or national level, to take account of the local culture and particular law.

If we take the example of Senegal[24], where the procedures of the administrative law of the Church are virtually ignored by the faithful, one finds that the use of mediation, which is part of the African culture, is often spontaneously employed to resolve controversies arising from the exercise of the executive power of the Church:

  • A priest got a girl pregnant. Her parents complained to the village chief. The chief intervened with the bishop, and the priest was transferred while the family of the girl was compensated;
  • A parish priest and his vicar were angry to the point that they would no longer talk to each other. When the matter became insoluble, the faithful called on another priest from the parish, to try to reconcile them. He was partially successful, and made a report to the bishop, who then transferred the vicar;
  • A dispute occurred between a diocese and a congregation about a Catholic school. The problem was resolved through the intervention of the diocesan director of Catholic education, who took the time to analyze the issue in detail, in the light of the law in force.

In canon law, canon 1733 §2 provides for the creation of structures of mediation at the local level:

Can. 1733 § 2. The conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind.

Three major types of situations are encountered, according to the Conference of Bishops, which:

  • Directs the creation of councils of conciliation or mediation, and establishes the rules;
  • Recommends their creation by promulgating some models;
  • Lets dioceses take initiatives that they deem relevant, without giving instructions a priori.

Let us see how the situation plays out in reality.

 

  • Ecclesiastical Mediation in France

An entire book would be necessary to discuss all the aspects of ecclesiastical mediation in France. We will give an overview in the dioceses and in Catholic teaching.

To begin we will make some observations regarding the three main forms of resolving conflicts, alternatives to litigation: arbitration, conciliation and mediation[25]:

  • The arbitrator shall pronounce a sentence after having heard the parties, as a judge does;
  • The conciliator proposes solutions that he considers balanced, but it is the parties who decide to adopt them or not; or
  • The mediator is limited to facilitating dialogue, without deciding or proposing a solution.

 

Here is an example that shows what it is in practice:

A member of Canonists without Borders was called as a mediator between two parishioners whose feud was “poisoning the parish. » The first meeting was held in the office of the parish priest who acted as a conciliator. Despite being interested in the solution that he proposed, the parties did not accept it. A new meeting was held in the presence of the mediator, and without the conciliator.  At its conclusion, one of the parties proposed a constructive solution, but the other party was not yet ready to accept, and so they requested a new mediation session. From these two attempts, it is apparent that one of the interests of mediation as opposed to conciliation is the respect for a period of personal maturity of the parties.

 

1.1.1. Diocesan Councils of Mediation

Among others, Jean Donguy concentrated on the application in France of canons 1733 and 1734 relating to mediation boards[26]. Here is an excerpt from his research:

Nothing was put in place [in France] before 1991-1992. In fact it was only at this time that the importance of the number of lay people in the service of the Church led to reflection, which has led to the development of a statute addressing the problems of the rights and duties of employees, with recourse procedures to protect these rights. From the start, some dioceses formed their own councils of mediation based on […] canon 1713, […] The canonical Committee of the Conference of Bishops had to make some clarifications. The Conference of Bishops then announced the establishment in each diocese of councils of mediation, and has established standards to this end[27].

To explain the origin of the mediation boards in France, Jean Donguy connects it to the labor contracts between the diocesan associations of France and the laity, whom they employ in increasing numbers, in particular to compensate for the shortage of priests.

In the early 1990’s, many diocesan managers were trying to create an ecclesial status for the pastoral leaders whom they were putting in place. In the chapter about withdrawal of the letter of mission, there was the thorny question of how to avoid conflicts, while resolving them in a fair manner in some suitable way. Some had put in place a group of reflection at the service of the pastoral leaders, and provided for mediators who can be chosen from among the members of this group. In order to avoid that decisions of the civil law from being imposed on them, they have sought for solutions within the Church[28].

In 1993, the General Secretariat of the Episcopate published a booklet on this theme, entitled « Laity Entrusted with a Mission in the Church[29].” The document proposed that diocesan volunteers put in place a council of mediation, and as a result, 27 dioceses experimented with pilot-projects in 1994 and 1995[30].  They highlight two practical questions not decided by the Episcopal Conference, namely:

  • Whether a decision to arbitrate vis-a-vis the Bishop is mandatory or not;
  • The legal foundations of some of the interdiocesan mediation councils.

On the basis of these experiences, the Conference of the Bishops of France decided, by a vote of the Plenary Assembly on 6 November 1996, that in each diocese a council is to be constituted, to seek equitable solutions, according to the standards established by the Conference. They are « the diocesan councils of mediation » or, as they were sometimes called at that time, mediation groups.

Several dioceses have effectively instituted such mediation councils or groups, integrating or not the preliminary remarks that accompany the decree of the canonical committee of the Conference of Bishops. The first two waves of fifteen dioceses put such a council in place right away[31], or shortly thereafter[32]. Other waves follow before and after the 24 August 1998, date of the promulgation of the decree of the Conference of Bishops which received the approval of the Roman Curia[33].

In August 2000, Jean Donguy specified that there still remained three dioceses whose mediation councils were under study[34], while 21 dioceses had not planned to create one[35], and 40 decrees of creation of councils « ad experimentum » would expire in six months. The body of designated mediators was composed of 170 persons, including 35% priests, 3 % deacons, 5 % religious, 36% laymen and 21% lay women.

In general, the mediators work voluntarily, while their travel and/or training expenses are borne by the diocese.

In taking stock of the results[36], Jean Donguy noted:

The use of mediation seems to have been […] little used above all because « it was limited to mediation of labor conflicts. »Leaving aside the other sectors where mediation could be sought, for example associations of chaplains under the French law of 1901, or parish associations, those responsible can be held to be aggrieved by a (written) decision from the diocese or of the parish priest.

Among the positive points in favor of mediation, note the intimate knowledge of the problems in the field, which may allow a return of useful experience to ensure that situations of conflict do not recur for reasons attributable to the ecclesiastical hierarchy.

On November 3, 1998, Olivier Delgrange, secretary of the mediation group of the dioceses of Evry, Nanterre, Pontoise and Versailles, wrote to the four bishops of guardianship to attract their attention to the methods of issuing letters of mission which, « in view of the resulting conflicts, lack the necessary rigor. » [37]

To find out what has happened to these councils of diocesan mediation, we conducted a quick search, referring to the literature and internet sites of the dioceses.

In 2015 some dioceses, such as Nancy and Toul[38], announced on their websites an interdiocesan council of mediation and provided a means to contact it. Others, such as the diocese of Saint-Denis, announced the existence of such a council, referring to its object but without specifying whom to contact.

The Church, in the relations between its members and in the decisions of its leaders, must give witness to justice, fairness and the rights of everyone. It has therefore provided that when a person feels aggrieved by a decision made by one in authority, this person – physical or legal – can file a recourse before the competent authority. The council of mediation may be a first step in the search for an equitable solution[39].

The diocese of Charters limits mediation to the « laity in mission, » writing what to do in case of conflict, but staying at the theoretical level.

If a layman in ecclesial mission is aggrieved – challenging for example the reasons for the withdrawal of his letter of mission – recourse should first of all be made to the closest leaders (pastoral authority, Vicar General, etc.) to achieve, if possible, a conciliation. In case the conciliation fails, one or the other of the parties concerned or even the diocesan authority can resort to the Diocesan Council of Mediation (order of 14 May 1999). The role of this board is to avoid disputes or to avoid them by searching for « a common agreement, a fair solution » according to the provisions of article 1733 §1 of the Code of Canon Law[40].

As for other dioceses, they publish more or less precise references to mediation boards[41], or do not publish anything. This evidence, or the absence thereof, does not mean the council does not exist or is inactive. Similarly, the Diocese of Poitiers announced the existence of a provincial council of mediation, while the diocese of Lyon did not reference the council of mediation as one of the councils of the bishop[42], yet witnesses such as Anne-Bénédicte Hoffner believe that the actual situation is otherwise:

In the dioceses that have them, recourse to the diocesan council of mediation is possible for the employee. Two persons have done this in Lyon, since its creation in 1994. With respect to that of the Ecclesiastical Province of Poitiers, created the same year, it has never been mobilized. Be that as it may, the risk that a dispute be brought someday before a civil council, or even before the criminal court judge (for discrimination, for example) is real[43].

For more information, it is important to refer to the work of the university institute of training in mediation and negotiation (Ifomene) in Paris, and in particular those of:

  • Jean Claude Lavigne[44] on the practices of the advice of mediation in the dioceses of Paris, Poitiers, Versailles and Metz;
  • Christelle Javary in 2008, on the example of the Service Accueil-Médiation (SAM) [45],
  • Etienne Rozé, in 2015, on mediation in the Catholic dioceses of Nancy and Toul[46].

 

In addition to the types of conflicts that he illustrated by numerous examples, Etienne Rozé recalled that the organization of structured mediation is in progress within both the Church and society in general. He considered that one of the main contributions of the mediator is his belief that a solution is possible, and that mediation within the Church is similar to the current type of mediation between businesses, in which it is appropriate to integrate ethics and applicable rules, in this case theology and canon law. He suggested that at the diocesan, interdiocesan and national levels, the experience with the type of mediation put in place for religious (SAM) should be explored. The press presented an example without giving the results:

In the diocese of Le Puy en Velay, the magazine Riposte catholique wrote that many priests and religious communities leave the diocese, and that even in circles very close to the bishop, the suffering is real and the anger contained… but barely. Some diocesan faithful wrote to the author: « I do not know what to think of this article, it looks like a war between old and modern… it is sad. » To restore dialogue between the bishop and his clergy, the former rector of the cathedral of Le Puy, consecrated auxiliary bishop of Lyon, would have been called to the rescue to serve as mediator[47].

 

1.1.2. Mediation in Catholic Education

With regard to Catholic education, its 2013 statutes contain Article 83, devoted to mediation for the resolution of problems, while this article was not in the modified statutes of 1992[48].

In case of disagreement, even crisis, people can be accompanied in the form of mediation. It is a voluntary and confidential process guided by an independent and impartial third party; the decisions and agreements involved pertain only to the persons involved in the mediation.

It must be said that, in the meantime, many conflicts have seen the light of day, forcing the Conference of the Bishops of France to intervene on 30 September 1999 in these terms:

In June 1998, at the request of the Permanent Council, the Secretary General of Catholic Education sent to the bishops a sheet on the withdrawal of a letter of mission of a head of the establishment. New reflections, continued in the course of this year with the Roman offices, allow us to address to you today a final note … to the extent that that is possible. It indicates with great precision the procedure to follow. I would like to insist: this is a process of ecclesial law, not of civil law. There are disputes between authorities of diocesan catholic education and the heads….of institutions that make reference to civil legislation that we bishops should arbitrate, turning incorrectly to canonical procedure. We must be watchful, when our collaborators would be tempted to use the ecclesial forum as an « ultimate weapon » to defend their cause. It is a matter of justice and also of good sense. With my fraternal respect[49].

The attached note of the General Secretariat of Catholic education included a paragraph on mediation, written in these terms:

Outside of canonical procedure, there are diocesan mediation councils: Some dioceses have implemented a diocesan mediation council. It has to be emphasized that it is not a judicial institution, but only has the mission to find, outside of any contentious procedure, a consensus that could resolve the conflict. The referral to a council of mediation does not interrupt the time for recourse, which is still running, and thus could be exhausted[50].

Currently, these guidelines give rise to an exemplary achievement:

Based on an experiement initiated in 2004, the General Secretariat of the Catholic Education put in place a group of institutional mediation involving professional mediators, in particular to intervene when tensions arise between a diocesan director of education and the head of an institution, or between the head of an institution and its employees, or regarding a challenge to the relocation of a school, or a contested election of a board of directors of the College. The day of mediation is priced at $530[51].

With respect to mediation for consecrated persons, we have referred in Chapter 6  to the « Welcome Mediation Service for Religious Life and Community » (SAM), created in 2001 by the Conference of Bishops of France.

1.2. Ecclesiastical Mediation around the World

Outside of France, Kurt Martens[52] made a very detailed study in the late 1990’s about legal protection in the Church, with many developments regarding mediation practices. He distinguished four situations:

  • Sometimes, episcopal conferences order the creation of conciliation boards in dioceses and they specify the standards[53];

Sometimes, the obligation is reduced to a recommendation[54];

  • Sometimes, episcopal conferences indicate that they leave the creation of such councils to the discretion of the bishops[55];
  • Finally, everywhere in the world there are dioceses which have put mediation councils in place, in the absence of explicit standards from their episcopal conference[56].

Martens also provided concrete details on the situation in several countries, and we will summarize his remarks.

In 1989, the Episcopal Conference of the Netherlands adopted a decree on the creation of diocesan councils for conflicts resulting from administrative decisions. […] In December 1989, shortly after the promulgation of this decree, the Conference decided to revoke it, apparently because of two factors: first, it was believed that ad hoc solutions were satisfactory in some cases, and secondly, it was of the opinion that no episcopal conference had introduced such councils[57].

Despite this change, Kurt Martens reports that only four of the seven dioceses of the Netherlands put in place such a council, but apparently they were successful, since for 1999-2000 approximately half of the thirty cases studied had a positive result[58].

On 19 November 1975 in Germany, a synod of the dioceses approved a decree on mediation, arbitration and the solution of administrative conflicts[59].

In 1994 in Belgium, the interdiocesan pastoral council IPB requested the creation of mediation councils. Since the bishops agreed on their usefulness, standards were published and their creation was announced in 1996 for the Flemish dioceses and for the Archdiocese of Mechelen-Brussels. In practice, only the Diocese of Bruges and the Archdiocese of Mechelen-Brussels had put in place these Councils by 1997.

In 1969 in the United States[60], the story began with a double desire to increase the credibility of the Church in matters of law, and to « better protect the faithful against ecclesiastical authorities[61].” In this regard, the annual congress of the Canon Law Society of America (CSLA) adopted in October 1969 a report on fair procedures (due process) based on canons 1925[62] et 1929[63] of the 1917 Code. It was presented to the Episcopal Conference, which would then submit it to the Holy See. Finally, Blessed Pope Paul VI approved it with a few amendments, and so the report was published in 1971[64].

After the promulgation of the 1983 Code, the CSLA reviewed procedures of « due process” during its annual convention, based on the experience gained during twelve years of practice. It showed that « due process » was introduced gradually in half of the dioceses and a few religious institutes, with a majority of cases resolved out of a thousand cases addressed. The 1968 report was then revised in 1991, in order to describe three procedures for the resolution of conflicts: conciliation, arbitration and the Administrative Tribunal. Experimentation took place 1993-1995 in the Dioceses of Dallas and Portland for conciliation and arbitration. On the basis of a dozen cases treated, the evaluation highlighted a triple need:

  • Good advertising, to publicize the initiative and win the confidence of the community;
  • An office within the parish, to which the faithful can turn to get information on the process;
  • Competent personnel, to resolve cases at the diocesan level.

Another experiment was conducted during the same period regarding the exercise of an Administrative Tribunal. The Diocese of Milwaukee examined four cases, and resolved two of them. The diocese of Saint-Paul-Minneapolis judged only one case, and the Archbishop annulled the decision. Informed of these results, the Supreme Tribunal of the Apostolic Signatura was in favor of the American initiative, but pointed out the need for approval by the Apostolic See to create an Administrative Tribunal of first instance in a country or a diocese. It followed that the procedure of American Administrative Tribunals was transformed into a « Court of Equity, » by limiting it to a sophisticated form of hierarchical recourse.

In Great Britain and Wales, in 1973 the Assembly of Bishops approved a report of the Canon Law Society of Great Britain and Ireland[65]. This report, inspired by that of the United States, provided for a mediation procedure, in order to resolve potential conflicts between the members of the Church, indicating in the preamble that these conflicts mainly occurred between the faithful, rather than between the faithful and the authorities. The procedure, which was friendly and informal, was to appoint in each diocese at least two conciliators, in reality mediators, whose job it would be to reconcile the parties in question.

In addition to the work of Kurt Martens, we found other experiences of mediation or arbitration through our reading and meetings.

 

Similarly in the Netherlands,

Six bishops who enacted the status of pastoral care workers installed an arbitration committee. It includes ten members: four appointed by the Bishops, and four appointed by the organizations representing the pastoral workers. The members designated shall also appoint a chairman and a vice-president outside their group[66]

In Canada, the bishops sought to change the tendency among the faithful to make recourse to the civil courts, without attempting to obtain justice within the Church. Here is what the Canadian Canon Law Society had to say:

Through the years, the question of the protection of the rights of the faithful has been found to be at the forefront of [Canadian] canonical thought. The possibility of tackling this problem, either by the establishment of an administrative tribunal or by other means, was studied on several occasions. […] The Society has agreed not to require the establishment of an administrative tribunal, but rather to put in place an office for mediation, conciliation and arbitration. If the project is approved, it will still take a lot of work to establish protocols for the task, for the recruitment of staff and for the successful functioning of this office[67].

As an example, the Diocese of Montreal created a diocesan tribunal ad experimentum, but finally abandoned it for the following reasons[68]:

  • The priests all knew each other, and the members of the Tribunal did not have the needed impartiality to apply the law to their colleagues;
  • There were not enough people who were trained and had the spirit and the necessary independence, because everyone already knew each other;
  • Persons who were rejected by the Tribunal ad experimentum turned almost systematically to the bishop on appeal[69];
  • Recourse created tension within the diocesan Curia;
  • The one whose act prompted the recourse cannot be the person who consoles.

Instead, the diocese put in place an ombudsman, with a procedure for dealing with cases, so as to reduce the caseload of the Curia and the bishop.

Since we have no extensive study, we will do well to draw other conclusions, finding that the mediation procedure generally works when it is put in place correctly, but it is a complex procedure that is not a priority.

 

  1. Mediation in Civil Society

Since ecclesiastical mediation is not operational in many dioceses, and yet is useful to prevent conflicts, let us see whether it is possible to draw useful lessons from the experiences of others.

  • Methodes of Mediation

According to mediation professionals, mediation develops because:

Most of the systems of conflict resolution are based on authority […] but authority has limits in contemporary society. The mediator, therefore, is not an authority: he resolves nothing, does not impose anything, prohibits little, and always ensures the freedom of the parties[70].

Concretely, mediation may take very different forms allowing parties in conflict to overcome the past, by qualifying it with shared words, and to reconstruct the future by finding an acceptable solution or at least, by restoring relationships that will enable them to advance in a constructive manner.

However, the role of mediator cannot be improvised.  He has to learn the advantages and the limits as well as the proven principles, the necessary steps, the concrete techniques, nuanced practices and pitfalls.

The methods of mediation are varied, but they require a common will of the parties to find a solution with the help of a mediator. Additionally, they meet a few basic principles that the parties first have to accept:

  • In advance, the two parties must be in agreement on the choice of a mediator in whom they have confidence, and on the method of mediation;
  • During the mediation, the mediator should adopt an attitude of neutrality in focusing primarily on enforcing the mediation process, or get actively involved by pointing out the law and contributing to the search for solutions. However, he must continually ensure that the two parties agree to the mediation process;
  • At the end of the mediation, when solutions acceptable by the two parties have been identified, it is important to confirm the points of agreement in writing. If no agreement has been reached, it is necessary to outline the disagreement in terms acceptable to the two parties.

For a successful mediation it is necessary not to burn bridges, taking care that:

  1. The parties agree on the principle of mediation and its terms and conditions;
  2. The parties agree on the description of the facts, as initial points of view are often different;
  3. The mediator understands the motivations of the two parties, their needs, interests and constraints;
  4. All possible solutions are weighed;
  5. Enough confidence is restored between the parties in order to have a true dialogue;
  6. The solutions are analyzed on the basis of all of the stakeholders and the context;
  7. The most balanced solutions are developed, and one of them is chosen and formalized.

 

  • Mediation Overview

Many countries and organizations recommend mediation as a means for the resolution of conflicts.

With regard to Europe, a directive of 21 May 2008 focused “on certain aspects of mediation in civil and commercial matters,” while a code of good conduct of the mediator was published on 4 July 2014 by the European Commission[71]. Here are a few excerpts from the preamble to the Directive:

In May 2000, the Council adopted conclusions on alternative methods of settling disputes under civil and commercial law, and stated that the establishment of basic principles in this area constituted an essential step […] Mediation can provide a solution to controversies that is economical, extrajudicial, and fast […] Member states should be able to refuse to make a binding agreement only if the content of the agreement is contrary to the law […][72]

In 2009, the European Grouping of the Magistrates for the Mediation (GEMME) organized its first international foundations of judicial mediation, where it appeared that:

in the history of humanity, most of the countries of the world inserted mediation into their judicial system. […] At the outcome of this historic event, the participants wished to remain in contact, and created the International Conference of Mediation for Justice.

In France, mediation is a practice used in education, trade, administration, banks, insurance companies, social organizations, etc. It is included in the judicial system in civil, criminal, and administrative matters, and envisaged for criminal cases. In order to facilitate a relationship, to transmit information, to ameliorate suffering, or to put an end to a dispute, mediation has become, at the end of the 20th century, a point of reference.

For example, the French Code of Civil Procedures includes an entire title devoted to mediation. In administrative law, the Council of State organized a symposium on 17 June 2015, called « Mediation and Conciliation before Administrative Jurisdiction[73] » in partnership with the Order of Lawyers of Paris and the European Grouping of the Magistrates for the Mediation (GEMME – France), whose report begins with this statement:

Even if they respond to increasing and unknown needs, mutual-agreement procedures have been insufficiently developed in administrative matters[74].

With regard to practical implementation, the Direction of Legal and Administrative Information (DILA) published a series of information sheets about alternative methods for the settlement of conflicts (MARC) by specifying that they « are intended to respond to these malfunctions of justice. »

Obstruction, slowness, cost, complexity, distance are some of the criticisms made regularly by litigants against a judicial order which no longer has the necessary material means to cope with the increase in litigation. […] At the opposite of the court trial, the MARC’s allow for a mastery of the handling of conflicts, and express the desire to reach an amicable solution to the dispute[75].

A study conducted in 2003[76]  told us that at this time, nine-tenths of the references to mediators came directly from the parties, and 58 % of the cases assigned to justice conciliators in 2003 led to conciliation. Consultations with a view toward conciliation have increased by 8 % per year on average since 1993, and in 2003 they represented 118,700 businesses. Compared to the number of cases dealt with by the courts (489,000 cases completed in 2003), the activity of justice conciliators is far from negligible, even if we think that all the cases in which they are directly involved would likely not have been presented in court or before local judges. The study also told us that:

The justice conciliators are most often men (86 % of conciliators), and they are relatively old, since 80 % of them are over the age of 60, and 35% are over 70. […] 86% of the conciliators are currently retired […] a little more than half of the conciliators working in 2003 had occupied these roles for less than five years, 30%  for 5-10 years, and nearly 20% for over ten years.

While conventional mediation presents encouraging results, it is not the same for mediation in criminal cases. In effect,

The French Directorate of Criminal Affairs and Pardons notes that « criminal mediation remains stable (34,865 in 2004 as opposed to 34,077 in 2003). Often used in litigation related to « personal conflicts,” mediation in criminal cases, in the face of the increasing diversity of the so-called third way measures, is considered more expensive, even less successful in its results, and is marked by a failure-rate that is not negligible and by delays in execution that are more consistent. […] In fact, the 16 March 2004 pamphlet reserved its use for offenses committed in close relationships.

Finally, family mediation is the subject of specific provisions in the French Civil Code (exercise of parental authority, divorce), but it remains little used. In effect, a study of the Department of Justice shows that in 2003, family court judges had recourse to family mediation measure in 0.7 % of family affairs with minor children that they have had to deal with.

Consequently, French professionals gathered in the Professional Chamber of Mediation and Negotiation[77] published a manifesto for the right to professional mediation, of which this is an extract:

The object of this Manifesto is to adopt professional mediation as a prerequisite to judicial action in civil, commercial, and labor matters as a fundamental right. This new law, resulting from the evolution of personal development, allows for the exercise of free decision. It is associated with a duty to respond favorably to a request for mediation before any judicial procedure. This determination is the outcome of the observation that there is an alternative to « conflict management » which maintains adversity. This alternative is the resolution-track through the promotion of others[78].

Additionally, they considered that the conditions necessary for the implementation of the right to mediation are: a professionalism based on appropriate training, a code of ethics[79], and a system of mediators who are independent of the authorities involved.

On 11 September 2014, the French Minister of Justice presented the main themes of the judicial reform  »J21 – Justice of the 21st Century » to the heads of court gathered at the Court of Recourse in Paris, and then to the trade-union organizations welcomed at the Chancery. This project is structured around three axes aimed at constructing a justice that is closer to citizens, and more effective and more protective of them. Mediation is classified in the second category of promoting alternative modes of dispute resolution, as indicated by the Minister of Justice[80]:

Justice has for its first mission the appeasement of social relations. Conciliation and mediation are by nature designed to contribute, but the structures which propose them are disparate and poorly coordinated. In order to identify and then to simplify the existing system, to define the status and role of mediators and conciliators, and determine the method of funding settlements of conflicts, an Interministerial Mission for the evaluation of offers of mediation and conciliation will soon be put in place. […] This assessment will help to initiate a national public policy which is currently non-existent, which can be animated by a National Council of Conciliation and Mediation. It should better integrate justice conciliators with courts.

As to whether mediation is applicable to administrative law, the President of the Bar of Paris, Ms. Christiane Féral-Schuhl, responded positively in her budget for 2013:

Again, mediation has its place before the Administrative Court, in a relationship of constant force between those administered to, and the Administration[81].

In conclusion, we hold that the practice of mediation is useful for the resolution of conflicts in civil society, and it allows for the relief of congestion in courts other than criminal ones.

  • Mediation in Christian Denominations

 

In other Christian denominations that do not have canon law and a structured judicial system like that of the Catholic Church, the methods of amicable resolution of conflicts, such as mediation, are often more developed. Here is an example taken from a symposium which was attended by the Church of the Awakening of Villeurbanne, where Pastor Angelo Pace has launched training on Relational Health.

The only place where there is no conflict is in the cemetery. What is specific to the Christian approach is not the absence of conflict, but rather the way to resolve it. […] Talking to each other is often sufficient to resolve problems. It must be encouraged. […] If dialogue is not enough, and the positions become irreconcilable, mediation becomes a solution[82].

Jean-Luc Leibe[83] a member of the Prevention and Management of Conflicts Service within the Baptist Federation, asserted:

Mediation has always existed in all times and in all environments and societies. Traditional societies have maintained a centuries-old tradition of mediation. The Church finds traces of its practice since its origins. […] It has always been that the Bishops confided traditionally to priests a mission of mediation between their parishioners. […] It is in the USA and Canada that mediation emerged in the 1970’s, firstly in the consumer sector, and then in judicial and family disputes… These included, the example, the mediation program in Ontario (Canada), conducted by the Mennonite churches, called the “Victim Offender Program” in the area of criminal justice. Thanks to this program, victims and aggressors are trying to speak to each other. But it is in the USA (Atlanta), where we find the first practices of mediation (1974) in the formal framework of judicial mediation-conciliation. Mediation took root in Europe in the 1980’s. All fields, including religious, are aware of the expansion of this phenomenon. Thus, the Code of Canon Law, promulgated by Pope John Paul II in 1983, suggests that every diocese put in place an institution of conflict resolution (canon 1733). This achievement, reflecting the Church’s theology of conflicts after Vatican II, finds its application in the 24 August 1998 decree of the Conference of the Bishops of France, defining « diocesan mediation councils.” It is in this period that the news highlighted some mediators. An example was the pastor Jacques Steward, President of the FPS, in 1988, who was one of the mediators in the conflict in New Caledonia. On the island of Ouvéa, we find Michel Rocard, Prime Minister at the time, who had the mission of restoring confidence between the belligerents[84].

This testimony reveals another aspect of mediation as contained in the Social Doctrine of the Church. It invites civil society to prevent and resolve conflicts. The Catholic Church is not alone in this area; it would be enough to cite only the mediation of Pope Leo XIII between the Armenians and the Ottoman Empire[85], or, more recently, that of Pope Francis between Israelis and Palestinians[86]. In addition to the Holy See, Joseph Ndi-Okalla[87] mentions the role of the San Egidio Community in the field of mediation. It has largely contributed to the resolution of internal conflict in Mozambique, by promoting the signing of a peace agreement between the warring parties on 14 October 1992 on the premises of the Community, after 10 years of civil war. In Algeria, the Community created a political platform in 1994, bringing political leaders together.

In addition, mediation or conciliation[88] are familiar to Protestants, as can be seen in the Reformed Evangelical Church of the canton of Vaud, in Switzerland:

Active since 2010 within our church, the mediation committee is composed of three members trained in mediation, who are appointed for five years. The Commission is at the disposal of lay members and church ministers in the event of conflicts, tensions, issues of communication within a parish, a parish council, a regional council, or another body in link with the Reformed Evangelical Church in Vaud. Mediation is a voluntary process by which the mediators accompany the people toward a solution developed in the presence of the parties. This service of the Church is free and we will come to your villages, to your parishes. For an initial meeting, you can contact us by phone or by e-mail to simply be listened to, or ask for an individual or group session. After this meeting, the Commission will be in contact for a second time with the party or parties in conflict[89].

But let us return to the heart of our subject, focusing on the prevention and resolution of conflicts internal to the Catholic Church. In his 2002 article on legal protection in the Church[90], Kurt Martens drew these conclusions:

In some countries, it was understood that the absence of administrative tribunals in the Church must be corrected. That is why we can see that projects are being implemented everywhere. But as permission must be obtained from the Holy See, and more particularly from the Apostolic Signatura, to install a new system of courts, we look for alternatives. In practice, this means that it is limited to projects encouraging conciliation or mediation, based on the free will of the parties concerned. Not only is there risk of getting bogged down in lengthy procedures, but also that of standing beside a tribunal having the jurisdiction to require religious authority to respect the law. And is it not after all an application of the principle patere legem quam ipse fecisti? [91]

After having rejected the practice of arbitration by a third party who may not dictate to the bishops, we have found that mediation was a track allowing effectively « to avoid as much as possible disputes within the People of God, and to resolve them as soon as possible in a peaceful manner, » is as recommended by canon 1446. So that this develops harmoniously in the Church, Etienne Rozé recommended:

  • A culture of a spirit of benevolent confrontation. In effect, a procedure too “familiar” on the part of the authorities can lead to illegality[92];
  • Clarification of functions and their interdependence, by clear letters of mission;
  • Accountability of the actors;
  • Anticipation of conflict situations by the popularization of canon law and the administrative justice of the Church;
  • Structuring of mediation in church circles, both at the canonical and spiritual levels.

[1] Canon law is filled with procedures requiring prior consultation of the presbyteral council, the finance council, of pastoral council, etc.

[2] This is the case, for example, during the reorganization of parishes within the diocese, while the total number of priests decreases.

[3] Schlick (Jean), « Des limites de la justice administrative dans l’Église catholique » Praxis juridique et religion, 3, 1986, p. 127-135.

[4] One can think of the lack of time on the part of the one responsible, the lack of consideration or of mutual trust and confidence, the existence of higher interests which impose a secret detrimental to a good agreement, ignorance of the law, the intransigence of one of the parties, etc.

[5] Can.  1733 §1. Whenever a person considers himself or herself aggrieved by a decree, it is particularly desirable that the person and the author of the decree avoid any contention and take care to seek an equitable solution by common counsel, possibly using the mediation and effort of wise persons to avoid or settle the controversy in a suitable way.
§2. The conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind.

  • 3. The office or council mentioned in §2 is especially to be of assistance when the revocation of a decree has been requested according to the norm of can. 1734 and the time limits for making recourse have not elapsed. If recourse has been proposed against a decree, however, the superior who deals with the recourse is to urge the person making recourse and the author of the decree to seek a solution of this kind whenever he sees hope of a favorable outcome.

[6] Can.  1446 §1. All the Christian faithful, and especially bishops, are to strive diligently to avoid litigation among the people of God as much as possible, without prejudice to justice, and to resolve litigation peacefully as soon as possible.

  • 2. Whenever the judge perceives some hope of a favorable outcome at the start of litigation or even at any other time, the judge is not to neglect to encourage and assist the parties to collaborate in seeking an equitable solution to the controversy and to indicate to them suitable means to this end, even by using reputable persons for mediation.
    §3. If the litigation concerns the private good of the parties, the judge is to discern whether the controversy can be concluded advantageously by an agreement or the judgment of arbitrators according to the norm of cann. 1713-1716.

[7] In secular law, Charles Jarosson defines it as: a variety of conciliations, which consists also in a process of resolution of disputes based on the search for an accord between the parties, but that requires the participation of a third party, the mediator.. 

[8] Cf. Can.  1659 §1. If the attempt at reconciliation according to the norm of can. 1446, §2 proved useless and the judge thinks that the libellus has some foundation, the judge is to order within three days by a decre appended to the bottom of the libellus that a copy of the petition be communicated to the respondent, giving to the latter the opportunity to send a written response to the tribunal chancery within fifteen days.

[9] Can.  1713 In order to avoid judicial contentions an agreement or reconciliation is employed usefully, or the controversy can be committed to the judgment of one or more arbitrators

[10] Greater consistency would be welcome between the terms used in canons 1446 and 1713, since, in my opinion, reconciliation or conciliation is the objective, while mediation or arbitration is the means to achieve it.

[11] In arbitration, the parties are bound by the decision of the arbitrator, in contrast to mediation.

[12] In secular law, Charles Jarosson defines it as: a process for the resolution of disputes based on the search for an agreement between the parties… In the glossary of IFOMENE, 25 March 2008. According to the new Code of Civil Procedure, Art 127: « The parties can reconcile by themselves or on the initiative of a judge, throughout the proceedings. » We reject the term “conciliator,” cited by Jarosson to avoid confusion with that of mediator. Jean-Pierre Bonafé-Schmitt in La médiation, une autre justice, ed. Syros-Alternatives, Coll Alternatives sociales, 1992, defines it as « more often a formal process by which a neutral third party attempts, by organizing an exchange between the parties, to enable them to compare their points of view and to search, with his help, for a solution to the conflict. »

[13] Can.  1714 For an agreement, a compromise, and an arbitrated judgment, the norms selected by the parties or, if the parties have selected none, the law laid down by the conference of bishops, if there is such a law, or the civil law in force in the place where the agreement is entered into is to be observed.

[14] Kasongo (Paul Vincent), “Normes canoniques sur les moyens d’éviter les litiges et leur application dans le contexte culturel du Congo Kinshasa,|” thesis defended on 26 January 2016 at Louvain. Summary in Studia canonica, 51/1, 2017, p. 284-285.

[15] Cf. supra.

[16] Pastor bonus, No 121.

[17] Pastor bonus, No 124, 1°.

[18] Mamberti (Cardinal Dominique), Circular Letter on court activity, Rome, 30 July 2016. The initial questionnaire of 1971 (AAS 63 [1971] 480-486) was revised in 2016.

[19] ASS (1985), p. 1272, translated from Italian.

[20] ASS (1976), p. 543, translated from Italian.

[21] ASS (1978) p. 625 translated from Italian.

[22] Cf. Prot 12230/80 CA, Ministerium Justitiae, op. cit. p. 197.

[23] Prot. 49737/14 CA, case reported to the author via www.canonistes.org

[24] Testimonies collected at Dakar by the author.

[25] The definitions can vary from one author to another.

[26] Donguy (Jean), Application en France des canons 1733 et 1734 relatifs aux Conseils de médiation, canon law license thesis defended on June 2, 2000 at the Faculty of Canon Law at the Catholic Institute of Paris, 150 p.

[27] Donguy (Jean), op. cit.  p. 8.

[28] Donguy (Jean), op. cit. p. 27.

[29] Laity entrusted with a mission in the Church, French document issued by the Secretariat of the National Conference of the Bishops of France, 1993 edition, pp. 15-17.

[30] Five dioceses of the Poitou-Charentes-Limousin administrative regions; as well as 22 dioceses of the Central East and Midi apostolic regions

[31] Chalons en Champagne, Langres, Reims and Troyes for the Northern Apostolic Region; Carcassonne, Albi, Auch, Cahors, Montauban, Pamiers, Perpignan, Rodez, Saint-Flour, Tarbes and Toulouse for the Apostolic Region of Midi; Poitiers, Angoulême, La Rochelle, Limoges and Tulle for the Apostolic Region of the Southwest.

[32] Amiens, Arras, Beauvais, Cambrai, Evreux, Le Havre, Lille, Rouen and Soisson for the Apostolic Region of the North; Agen, Aire et Dax, Bayonne-Lescar and Olon, Bordeaux, Perigueux for the Apostolic Region of the Southwest, Coutances-Avranches for the Apostolic Region of the West.

[33] Cf. Pastor Bonus, Art 82: The Congregation [for Bishops] …receives the acts of [episcopal conferences] and, in consultation with the dicasteries concerned, it examines the decrees which require the recognitio of the Apostolic See.

[34] Angers, Luçon, Nantes

[35] Ajaccio, Aix, Bayeux, Créteil, Digne, Fréjus-Toulon, Gap, Marseille, Meaux, Nice, Saint-Denis, Strasbourg, Vannes, as well as the Apostolic Centre Diodece, ie. Blois, Bourges, Chartres, Moulins, Nevers, Orléans, Sens and Tours.

[36] Donguy (Jean), op. cit. p. 114.

[37] Donguy (Jean), op. cit. Annexe II.

[38] www.catholique-nancy.fr/a-votre-service/les-services-de-leveque/les-commissions/conseil-de-mediation

[39]http://saint-denis.catholique.fr/monseigneur-pascal-delannoy/nominations/le-conseil-de-mediation consulted on 11 February 2015.

[40] Pansard (Michel), Les laïcs en mission ecclésiale dans le diocèse de Chartes, www.diocese-chartres.com/fichiers/officiel/STATUTS-LME_01-2011.pdf Consulted on 8 October 2010.

[41] During a search carried out in 2015, it is clear that some sites, like that of the Diocese of Digne, published the decree for the establishment of the mediation council, without comment. Others indicate whom to contact, such as Pamiers, Couserans and Mirepoix, or Angers which cites six parish-priest mediators. Others, such as La Rochelle and Saintes, Coutances and Avranches confine themselves to citing the existence of such a council before the bishop, without giving information or specific contacts. Still others, such as Poitiers, mention this provincial council in the directory of the diocese, but not on its website.

[42] The site of the diocese of Lyon makes reference to Council of the Laity in Mission, whose functions do not mention mediation, by publishing the March 1, 2007 decree ad experimentum of Cardinal Philippe Barbarin, http://lyon.catholique.fr/?Le-Conseil-des-laics-en-mission

[43] Hoffner (Anne-Bénédicte), L’Église et le gouvernement cherchent un statut pour les laïcs, La Croix, 28 mai 2008.

[44] Lavigne (Jean-Claude), Médiation et gestion des conflits dans l’Église catholique : les conseils diocésains de médiation. Archives, Order of Preachers (Dominicans).

[45] His work is discussed in Chapter 6 relating to justice for consecrated persons.

[46] Rozé (Etienne) Structures diocésaines, paroisses et médiations – réflexions à partir de la situation du diocèse catholique de Nancy et Toul, thesis for the university degree of mediator, Catholic Institute of Paris, IFOMENE, promotion 2014-15.

[47] Salon Beige 9 juillet 2017 ; Riposte catholique, 10 July 2017.

[48] Statutes on Catholic education in France, promulgated by the Conference of the Bishops of France, 14 May 1992, supplemented, as amended, and promulgated by the Permanent Council of the Episcopal Conference on 11 March 1996 as amended by the CNEC on 23 October 1999, and approved by the Bishops of France, then Statutes of Catholic education in France of 1 June 1993.

[49] Coloni (Michel), Bishop of Dijon, President of the Bishops’ Commission on Education, Life and Faith of the Youth, Chairman of the Bishops’ Committee of Academia and University, letter to the Bishops of France, Dijon, 10 June 1999.

[50] General Secretariat of Catholic Education, withdrawal of the mission of the head of an establishment, note SG/99.1223, Paris, August 1999.

[51] https://groupemediations.com/

[52] Martens (Kurt), la protection juridique dans l’Église : les tribunaux administratifs, la conciliation et du due Process, in Studia canonica, 36 (2002), p. 225-252.

[53] Martens (Kurt) cite les trois pays du Salvador, des Philippines et du Paraguay.

[54] Martens (Kurt) cite l’Argentine, le Nigéria, le Panama et les Pays-Bas

[55] This is the case in Bolivia, Ecuador, Gambia, Liberia, Sierra Leone, Guatemala, India, Italy, Malta, Mexico, Peru, Sri Lanka and Venezuela.

[56]This is the case in particular in Melbourne in Australia; Kildare and Leighlin, Ferns and Clogher in Ireland; and Aachen, Erfurt, Passau and Würzburg in Germany.

[57] Martens (Kurt), op. cit. p. 241.

[58] Martens (Kurt), Administrative Procedures in the Roman Catholic Church, Difficulties and Challenges in Ephemerides Theologicae Lovanesienes, 76 (2000), p. 354-380.

[59] Cf. Matthews (Kevin), « The Development and Future of the Administrative Tribunal », Studia Canonica, XVIII, (1984), p. 86. Cf. Fora abitrii Conciliationis

[60] Martens (Kurt), op. cit. p. 243-249.

[61] Martens (Kurt), La protection juridique dans l’Église : les tribunaux administratifs, la conciliation et le due process, in Studia canonica, 36/1 2002, p. 243.

[62] Can. 1925 § 1 As it is very desirable that the faithful avoid conflicts among themselves, the judge must urge them, when a contentious issue regarding a private interest is submitted to be decided by way of judgment, to finish the conflict by a transaction, if some hope of agreement remains.
§ 2 The judge can meet this duty before the parties are called to justice, or as soon as they have appeared, or at any other time when it will seem more appropriate to do so more effectively.  An attempted transaction.

  • 3 However, it is in keeping with the dignity of the judge, usually at least, to not undertake this personally, but to commit the task to some priest, especially to those who are judges of the Synod.

[63] Can. 1929: To avoid judicial cases, the parties may also conclude a convention, by which the conflict is handed over to the judgment of one or several people, or settle the question according to the rules of the law, that they treat according to equity; the first are called ‘Arbiters’, the latter ‘Arbitrators’.

[64] Nihil obstat for the due process, in The Jurist, 32, (1972), p. 291-292.

[65] Episcopal Conference of England and Wales, Conciliation procedure, April 1975, Canon Law Digest, 8, 1020-1030.

[66] Van der Helm (Ad), « Un clergé parallèle ? », Strasbourg, Cerdic, 1993, p.187-188/403.

[67] Canadian Canon Law Society: History. www.ccls-scdc.ca/Hist_Fr001.html

[68] Interview conducted on 16 January 2015, at the day of study of the Institute of Canon Law of Strasbourg on the associative life in the Church. www.droitcanon.com/Colloque_Associations_%20janvier%202015.pdf

[69] We do not fail to notice the analogy with the numerous recourses against the decisions of non-admission to the discussion made by the Secretary or the Congress of the Supreme Tribunal.

.

[70] Pekar Lempereur (Alain), Saler (Jacques), Colson (Aurélien), Les méthodes de la médiation, Paris, Dunod 2008, 272 p..

[71] www.ombudsman.europa.eu/fr/resources/code.faces#/page/1

[72] Directive 2008/52/EC of the European Parliament and of the Council, the Official Journal of the European Union of 24 May 2008, p. 136/3 to 136/8.

[73] Title VI: Conciliation and Mediation, Art. 127 to 131-15.

[74] Consulted on 21 December 2016 on the site of the Council of State. www.conseil-etat.fr

[75] www.vie-publique.fr/politiques-publiques/juge-justice-proximite/reglement-conflits

[76] Poutet (Christiane), « L’activité des conciliateurs de justice en 2003 », Infostat Justice No78, Paris November 2004.

[77] http://cpmn.info/wp/ accessed 16 February 2015.

[78]  www.mediateurs.pro/ accessed 16 February 2015.

[79] Code of Ethics and Professional Conduct of Mediators: consulted on 16 February 2015 on http://fr.wikimediation.org/

[80] Taubira (Christiane), 15 actions pour la justice au quotidien. Press release of the Ministry of Justice, 11 September 2014.   www.justice.gouv.fr/publication/j21-15actions.pdf

[81] Viart (Jean-Paul), Médiation et Justice : bilan d’une année prolifique  www.affiches-parisiennes.com/mediation-et-justice-bilan-d-une-annee-prolifique-3627.html#ixzz3T24tWDJ9

[82] Ott (Hervé), Schweitzer (Luis), Rognon (Frédéric), reported by Bénévent Tosseri, in “Les protestants mettent les conflits sur la table,” in La Croix, n° 40962, 28 November 2017.

[83] Leibe (Jean-Luc), pastor of the Baptist Evangelical Church (FEEBF) in Grenoble, and holder of a DESS in mediation (Paris I, Panthéon-Sorbonne).

[84] Leibe (Jean-Luc), « Le temps de la médiation, un espoir de réparation ? » Les cahiers de l’école pastorale, n° 79 – 1st Quarter 2011.

[85] Ruyssen (Georges-Henri), La Santa Sede e i massacri degli Armeni 1894-1896, Edizione Orientalia Cristiana, Pontificio Istituto Orientale, Roma 2012, 274 p.

[86] Following the failure of mediation by the US Secretary of State John Kerry, who did not spare his efforts over nine months (August 2013-April 2014) to obtain a peace agreement between the two parties, Pope Francis has invited Shimon Peres and Mahmoud Abbas to come to pray with him at the Vatican, 8 June 2014.

[87] Ndi-Okalla (Joseph), Le deuxième synode africain face aux défis socio-économiques et éthiques du continent, Karthala Editions, 2009, p. 189.

[88] Ott (Hervé) deplores the fact that one generally sees conciliation rather than mediation.

[89] http://eerv.ch/qui-sommes-nous/synode/la-commission-de-mediation/

[90] Cf Martens (Kurt), « Protection of Rights: Experiences with hierarchical recourse and possibilities for the Future », The Jurist, 69 (2009) p. 646-702.

[91] The phrase comes from Roman law, and can be translated as « You suffer the consequences of your own law. »

[92] Toxé (Philippe), « Quel principe de légalité en droit canonique », L’année canonique LVI, 2014-2015, p.234.

Preface and introduction

Preface

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

Since the creation in 1967 of the second section of the Supreme Tribunal of the Apostolic Signatura, many books have discussed the administrative law of the Church, « describing in detail the procedures and the applicable jurisprudence, » as the author writes, adding—and one can only agree with his judgment, especially after having read the many notes and bibliographic references at the bottom of the pages— »But there does not exist, to our knowledge, any recent French book on the subject, which focuses on the administrative case law of the Church and which provides the basics of administrative canon law for the Catholic faithful. »

This is the book written by Alain Ducass.

Of course, the book that he presents to us implies a certain knowledge of the law of the Church and, I would even say, the secular law, but at the end we have not an abstract discussion, but a guide-book, based on a unique database, rigorously and clearly designed, explaining many real-life examples and subjecting them to a criticism that is always constructive.

It would be inappropriate simply to reiterate in a poor way what the author has written in a masterly way. Read for yourselves the « Historical Perspective », and you will discover the author’s method, with the reported facts and the remarkable bibliography accompanying this chapter. Read with attention Chapter 3 on the sources of jurisprudence, and discover a database which will give you an idea of the work and the mastery of the author, and which will allow you to understand the subject in greater detail.

Let yourselves be guided by the book.

It is essential, moreover, that you carefully read Chapter 11 on « Prospects for Development.” Too many canonical discussions, symposia and conventions, as interesting as they might be, only lead to the publication of a volume, intended most often for use within the confines of a library; but the work of Mr. Ducass opens many perspectives which are practical, reasoned, and desirable. This book is a guide for action.

Certainly these « Prospects for Development » will provoke some criticism and reticence. It is very difficult to accept changes in our habits of thinking and acting. A great connoisseur of men and their laws wrote in this regard:

We who reign, how many useless things

We say, without knowing the evil that we do!

When the truth comes, we are hostile,

We have reasons against reason.

In the field of administrative justice of the Church, we can and we must rule against Victor Hugo[1].

 

 

 

 

 

 

 

 

 

 

 

 

 

Rev. Jacques Gressier

 

 

Doctor of Canon Law[2]

Former Judicial Vicar
of Arras and Amiens

Author of the Recueil Canonique d’Arras

 

 

July 25, 2017

 

   

2016 is the 500th anniversary of the first publication of Saint Thomas More’s Utopia, arguing for social justice.

Let us read a few sentences of this catholic English lawyer:

Two evils, greed and faction are the destruction of all justice.

Laws could be passed to keep the leader of a government from getting too much power.

Anyone who campaigns for public office becomes disqualified for holding any office at all.

The things we pray for, good Lord, give us grace to labor for.

~ Thomas More

 Let-us pray Saint Yves

 Saint Yves, you have lived among us,

You were an advocate for the poor,

The defender of widows and orphans,

The providence of all the needy.

Listen to our prayer today.

Make us love justice as you have loved it.

Help us to defend our rights,

Without prejudice to others,

Seeking reconciliation and peace above all else.

Inspire the defenders who plead the case of the oppressed

To ensure that justice is done in love.

 

Introduction

Faithful to the example and teaching of Christ, the Church, the light of the nations, fights against everything that hinders the full development of man, and in particular the culture of atheism which is sometimes an obstacle to the « free exercise of religion in society[3].” Over the centuries the Church has been committed to defending the rights of God, and to combating all forms of heresies that can deprive the faithful of grace and the salvation of their souls.

However,

Even if some, by the will of Christ, are established as doctors, stewards of the mysteries and pastors for the good of others, nevertheless, as to the dignity and activity common to all the faithful in the building up of the Body of Christ, a genuine equality reigns among all[4].

All the same,

The Church clasps sinners to its breast, it is therefore at once holy and always called to purify itself, constantly pursuing the path of penance and renewal [5].

Thus, despite the holiness of the Church, there still exist in our days some situations in which the Pastors of the Church behave like « mercenaries » (John 10, 12), as well as like legalists who « impose burdens hard to carry » (Luke 11, 46) on the shoulders of some of the faithful. Here is an example from Africa:

Unfortunately, very often some [diocesan] Curias of the south are dependent on the preconciliar structure of the Church, and are immersed in a cult of Authority proper to cultures of the third world, and are influenced by the way in which the civil authorities rule the nations of the Third World. They have forwarded the idea that the Curia is a center of power and decision-making, where the bishop directs his diocese with authoritarianism. It is not surprising to observe, in some cases, the absence of structures of pastoral consultation, and the faithful are unaware that it is their right to contact their bishop as the father of a family. It is even more surprising that this praxis is also found in the older churches, of which it is said that some have just freed themselves from the cult of power[6].

This type of situation damaged the Church, as Jean-Paul Betegne indicated:

It is not uncommon to find in the Church abuses of law and authority on the part of the hierarchy, which has the duty to promote the law of the Church. […] One cannot measure enough the extent of the damage caused within the community of the faithful and in the eyes of the world by such attitudes. It is indeed the image of the Church which is tarnished, there are many faithful who disdain the social teachings of the Church, there are men and women who relativize the relevance of the evangelical message, the frequenting of the sacraments which are neglected, etc.[7]

Aware of these difficulties, the Second Vatican Council affirmed the rights and obligations of the faithful, and to enforce them, on 15 August 1967 Blessed Paul VI created the second section of the Supreme Tribunal of the Apostolic Signatura, responsible for deciding:

The disputes arising from the exercise of 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 law[8].

« How many of the faithful have had the feeling of not being understood, that they were sometimes rejected? » wonders Cardinal Sarah[9]. A survey conducted in Dakar in 2017 shows that more than half of the faithful surveyed[10]  remembered a situation of controversy due to ecclesiastical power, while none of them was aware of the existence of the Administrative Tribunal of the Church created on August 15th 1967 or of the procedures of ex gratia, hierarchical and contentious-administrative recourse.

During those fifty years, canonists published treatises on the administrative law of the Church and scholarly articles in Italian, English, Spanish, German and Latin, describing in detail the procedures and the applicable jurisprudence. However, to our knowledge there is no recent book written on this subject with many practical examples about the administrative case law of the Church[11], which would provide the basics of administrative canon law to the Catholic faithful.

This book aims to fill these two gaps, from the thought of a French member of the Catholic faithful and a licensee in canon law[12] regularly working in Africa, with the reverence due to pastors[13], and taking account of the common good and the dignity of persons.

Drawing up a balance-sheet of fifty years of administrative justice is, however, an impossible task, for an inexperienced canonist, who is not plunged in the seraglio of the Supreme Tribunal of the Apostolic Signatura. Without claiming to achieve this, we propose these few pages of witness and of research that are based on five foundations:

  • An academic framework, before and after the obtaining of a License of Canon Law;
  • Regular contacts with the Catholic faithful on the network Canonists without Borders, which allow the author to collect many published or unpublished testimonies and interact with their authors, as does our colleague Cathy Caridi[14] in the English-speaking world;
  • A database of 994 contentious-administrative cases and 1123 decisions of the Supreme Tribunal, compiled from 2005 canonical publications[15], and structured with the techniques of the engineer[16];
  • A professional experience rich and varied in France and Africa, allowing us to take a step back regarding an institution;
  • The comments received and research carried out after the first French edition of the book.

 

Written in French within five years of half-time work, and translated into Italian and English[17], the English edition of the book and its online database are intended for four categories of persons:

  • The Catholic faithful, secular, religious or priests, experiencing administrative problems in the Church, and wishing to avoid the double pitfall of both sanctioning by their silence the practices that they believe to be wrong, and also putting the Church in difficulty, by addressing the civil courts or the means of social communication, without trusting in ecclesiastical justice;
  • Lawyers and curious persons who want to learn more about canon law, or even undertake studies in this area[18];
  • Canonists who will be able to access a lot of unpublished information on canonical administrative case law;
  • Church leaders, who will find in these pages food for thought for their future decisions.

The first part of the book presents the context of ecclesiastical justice, with a reminder of its role in the history of the Church[19], the analysis of its theological foundation, a simplified presentation of the procedure, and the description of our database, all illustrated by numerous unpublished diagrams which are explained in the book, such as those of recourse procedures referenced below.

 

The second part presents the administrative justice of the Church in its daily reality, with a quick reminder of rights, the difficulties encountered and solutions since 1967, because, according to Sergio Aumenta,

The introduction of forms of verification of the administrative action (and in particular the institution of judicial review by the Supreme Tribunal) has constituted a substantial improvement for the safeguarding of subjective legal rights[20].

Five chapters present the difficulties and recourse concerning the lay faithful (chap. 4), clergy (chap. 5), consecrated persons (chap. 6), or the charisms (chap. 7) and the Dicasteries (chap. 8), all illustrated by many cases of jurisprudence, particularly in the following areas:

Laity Clergy Consecrated Persons
Reorganization of parishes; reduction of churches to profane use. Transfer of clergy

 

Refusal of admission; exclaustration; Dismissal
Non-recognition or suppression of associations Removal of clergy Suppression of religious houses
Withdrawal of ecclesiastical mission Los of the clerical state and administrative sanctions Payment of salaries and pensions
Dealing with charisms (private revelations) Dealing with Dicasteries Property rights

In the light of fifty years of practice, the third part of the book allows the reader to revisit recourse procedures, and to propose a few paths of development on the occasion of the jubilee. The book emphasizes systematically the primary sources, which documents are approved by the Holy Father and decisions of the second section of the Supreme Tribunal. Knowing that these sources are not always accessible to the public, especially because of their personal nature, a wide appeal was made to the work of canonists close to the Apostolic Signatura. The absence of available official sources requires the author to propose statistical estimates; but these remain uncertain as long as they are not backed with hard data from the second section of the Supreme Tribunal, to which the present work has been submitted.

In addition to the unavailability of sources, the very vast field of administrative law of the Church and the time limits of the 50th Jubilee, the parameters of this book are mainly those which its author determined should be set.

He is a member of the Catholic faithful in France, aged 60 years, married, a father and grandfather. His profession of engineer in the service of the French State, and then as consultant to African Governments, has conferred on him a practical experience of administrative law. This has been supplemented by a solid training in canon law[21], by three years of research in the library and by a field experiment with Canonists without Borders, including the preparation and follow up of numerous hierarchical and contentious-administrative recourses.

His professional success and the support of his company energeTIC provide moral and financial independence, conditions essential to freedom of speech, used with the moderation imposed by the fear of God, love of the Church and scientific honesty, which free a person from the three corresponding slaveries that are egocentrism, closed-minded thought and the lie[22].

[1]  Hugo (Victor) The Art of Being a Grandfather IV, 4

[2] http://droit.regiminal.free.fr/

[3] Dignitatis humanae, No 1.

[4] Lumen Gentium, No 32.

[5] Lumen Gentium, No 8.

[6] Kitambala (Hilaire Iwaka) L’office de chancelier dans le Code de droit canonique de 1983, l’Harmattan, Paris 2017, p. 38-39 / 245.

[7] Betengne (Jean-Paul) Catholic University of Central Africa, Catholic Institute of Yaoundé, “Canonical Culture and Juridic Cultures in Africa,” 6 October 2017 conference at the International Convention of the Consociatio.

[8] Regimini Ecclesiae Universae, article 106.

[9] Sarah (Cardinal Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 223/420.

[10] The sample was made up of 25 participants of mature age, participating in the international symposium organized by the Center Saint Augustin in Dakar on the occasion of its 30th anniversary.

[11] A notable exception is the doctoral thesis of Msgr. Patrick Valdrini, pro-Rector and Professor of Canon Law at the Pontifical Lateran University in Rome.  His dissertation formed the basis of two books published in Strasbourg: Conflits et recours dans l’Église, Cerdic 1978; Injustices et protection des droits dans l’Église, Cerdic, 1984.

[12] This diploma, awarded by the Archbishop of Strasbourg, corresponds to the second Master’s of Canon Law of the University of Strasbourg and the diploma of Propaedeutics of Theology of l’Institut catholique de Paris.

[13] In the course of his work in administrative bodies, the (inter)diocesan Church courts, the author has been able to appreciate the professionalism, seriousness and the generosity of the clergy in charge of ecclesiastical justice for the recognition of the invalidity of marriage, and the dedication of the volunteers who help them. It has to be strongly recommended to other Catholic faithful to undertake studies on the canon law of marriage for work in the diocesan chancery or in their parish, to come to the aid of people in suffering, who seek to discern if their marriage is valid and indissoluble, or null, with a view to starting another stage in life.

[14] Caridi (Cathy), Canon made easy, http://canonlawmadeeasy.com/

[15] Status of the database on 1 January 2017.

[16] The database on which the book relies is presented in Chapter Three.

[17] The English translation has been made with the help of an American canonist and of a teacher and translator, Célie-Anne Ducass

[18] L’Institut catholique de Paris (ICP) puts online free training dedicated to canon law, entitled « La loi des hommes et la loi de Dieu, » cf. www.droitcanonique.ICP.fr. Cf. www.droitcanonique.icp.fr

[19] During a pilgrimage on foot toward Compostela, the author was consulted by a German pilgrim, who said he had distanced himself from the Catholic Church, because of its conduct during the 17th century in Germany with the episode of the witch hunt

[20] Aumenta (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 173.

[21]  Three years of studies at the Institute of canon law of Strasbourg, two years of theology at the Catholic Institute of Paris, followed by experiences of canon lawyer without payment: as a notary, advocate, and defender of the bond in the diocesan offices of Paris, Versailles, Cotonou and Dakar as a mediator within Catholic parishes in France, as a lawyer advisor of priests, religious and laymen in France and Africa or mediator within French parishes.

[22] I, the LORD, am your God, who brought you out of the land of Egypt, that place of slavery. Deut. 5, 6..

Administrative Justice for Dicasteries

Chapter 8 : Administrative Justice for Dicasteries

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

We have seen that the Vatican Dicasteries had the responsibility of dealing with hierarchic recourses that they received in their respective areas of competence. It is not possible to carry out a detailed analysis, because their number is very important and their confidentiality must be preserved. We must therefore content ourselves with fragmentary information drawn from three major secondary sources:

  • The competencies of the Dicasteries, as specified in the Apostolic Constitutions Regimini Ecclesiae Universae of 1967 and then Pastor Bonus, as well as subsequent motu proprio and the general regulation of the Roman Curia of 30 April 1999[1];
  • The administrative and judicial activity of the Dicasteries, as is published annually in the activity reports of the Holy See[2], commented on by authors such as Mgr. Charles Lefebvre[3], or specifically addressed by authors such as Punderson[4] or Marchesi[5];
  • Contentious-administrative recourse against decisions of the Dicasteries, which are included in the case-law of the Second Section of the Supreme Tribunal, gathered into our database.

Canonists sometimes provide qualitative comments on the Dicasteries, whose decisions are challenged. Similarly, Sergio Aumenta believes that

the acts that have been contested originate largely within two congregations (for the clergy and for the IVC), whereas the other Congregations are represented in very small numbers. »

In 2009, Kurt Martens stated that

Cases in the area of parish law are probably the most numerous: recourses against the suppression, merger, or alteration of parishes and the reduction to profane use of the parish church.[6].

Thanks to our gathering and analysis of jurisprudence[7], we are able to qualify and clarify these assertions—despite the incomplete nature of the information which could be verified, thanks to cooperation with the Second Section. First of all, here is a list of the Dicasteries[8], as they stand after the Apostolic Constitutions of 1967 and 1988:

REGIMINE ECCLESIAE UNIVERSAE PASTOR BONUS
Doctrine of the Faith (Art. 29-40) Doctrine of the Faith (Art. 48-55)
Oriental Churches (Art. 41-45) Oriental Churches (Art. 56-61)
Discipline of the Sacraments (Art. 54-57) Divine Worship and Discipline of the Sacraments (Art. 62-70)
Rites (Art.  58-64) Causes of Saints (Art. 71-74)
Bishops (Art. 46-53) Bishops (Art. 75-82)
Evangelization of Peoples and Propagation of the Faith (Art. 81-91) Evangelization of Peoples (Art. 85-92)
Clergy (Art.  65-70) Clergy (Art. 93-98)
Religious and Secular Institutes (71-74) Institutes of Consecrated Life and Societies of Apostolic Life (c. 105-111)
Catholic Education (Art. 75-80) Catholic Education (originally Congregation for Seminaries and Educational Institutions) (Art. 112-116)
Commissions (Art. 83-84 ; 99-104)
Offices (Art. 114-134) Secretariats[9]
Tribunals (Art. 104-113) Tribunals[10] (Art. 117-130)
Pontifical Councils (Art. 92-102) Pontifical Councils[11] (Art. 131-170)
Administrative Services (Art. 171-182)
Advocates and Institutions Attached to the Holy See (Art. 183-193)

 

Let us examine their legal activity in favor of law and justice. As of 15 February 2017, our database contained a total of 853 contentious-administrative recourses for which Dicastery is specified.

Among these recourses, 116 of them are the subject of a sentence of rejection in limine or non-admission to discussion, while the corresponding decision of the Tribunal is itself the subject of recourse. Including these as recourses against a decision of the Supreme Tribunal, the number of recourses by Dicastery where the administrative acts being challenged had originated are as follows:

Congregation/Council Recourse Percentage
Clergy 353 41 %
Consecrated Life 230 27 %
Supreme Tribunal 116 14 %
Laity and Family 39 4.5 %
Oriental Churches 30 3,5 %
Evangelization of Peoples 25 3 %
Education 23 3 %
Bishops 9 1 %
APSA 9 1 %
Doctrine of the Faith 5 0.5 %
Divine Worship 4 0.5 %
Other 10 1 %

 

The Congregation for Clergy and the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life are at the top, with 41% and 27% of recourses respectively, which allows us to quantify the usual appraisals of authors.

But the presence of the Supreme Tribunal[12] in third position, with 14% of the recourses[13], constitutes a great surprise with respect to the canonical literature.

Rather than stay in the realm of generalities, let us try to clarify the situation for each Dicastery.

 

  1. Recourses in Relation to Each Congregation

1.1. Congregation for the Doctrine of the Faith

The competences of the Congregation for the Doctrine of the Faith, the heir to the “Holy Office,” are defined, during the period under study, by the motu proprio « Integrae servandae » of 7 December 1965, Articles 29 to 40 of Regimini Ecclesiae Universae, then 48 to 55 of Pastor Bonus of which a few excerpts will be found here[14], as well as by the motu proprio “Tredici Anni”of 6 August 1982[15] and Sacramentorum Sanctitatis Tutela of 30 April 2001. Even if its role is mainly to promote sacred doctrine, the Congregation has retained the competences of the disciplinary order, to safeguard the faith which is a « common good,” a richness for all, starting with the poorest and the most disadvantaged when they are faced with falsehoods[16].

Historically, the Congregation for the Doctrine of the Faith has always exercised and continues to exercise judicial power for certain specific causes related to the defense of the faith and morals, and also the dignity of the sacraments, particularly reconciliation and the Eucharist[17].

When the Congregation is confronted with facts or theories that give rise to confusion, here is the procedure that it uses, as described by its Prefect in 1985:

Above all, we encourage bishops and Superiors General to enter into dialogue with the author, if they have not already done so. It is only when we do not clarify things in this way […] that we enter into an explanatory dialogue with the author. Firstly we communicate to him our opinion, developed after the examination of his works, done with the help of various experts. He has the ability to get back to us and lets us know if we have misinterpreted his thinking. After an exchange of letters (and sometimes a series of interviews), we will respond to him by giving him a definitive opinion, suggesting that he lay out all the clarifications from our dialogue in an article.[18]

In 2015, the Congregation’s disciplinary office recorded 607 cases that met the criteria of Article 10 of the Congregation’s regulations, including:

  • 518 relating to major crimes,
  • 43 relating to offenses against the faith, that is to say cases of heresy, apostasy or schism[19],
  • 20 relating to various other problems[20].

In 2010, the activity report also mentioned 19 cases relating to private revelations.

Francis Morrisey[21] described a few cases of jurisprudence, relating to hierarchical recourse or to questions asked by bishops to the Congregation for the Doctrine of the faith. They are:

  • The resumption of the priestly ministry;
  • The financial situation of laicized priests and their right to pension benefits;
  • Dismissal from the clerical state for persons with psychological difficulties[22].

It is surprising to see that of all these cases, only five are the subject of proceedings brought before the Supreme Tribunal, and to our knowledge, none of them was the subject of a judgment in favor of the petitioner:

  • In 1968, a recourse against a decision of the Holy Office relating to a post-mortem rehabilitation was rejected in limine[23].
  • In 1969, a priest made recourse against a decision of rejection of the congregation in respect to the maintenance of his salary when he had reached the age of 65. This recourse was not admitted to discussion by a decision of the Congress of 17 November 1970, confirmed by the College on 19 February 1972[24].
  • In 1987, a priest made recourse against a sentence of excommunication latae sententiae, but the recourse was not admitted to discussion, because the decision had been validated by the Pope, which made it ineligible for any recourse[25].
  • In 1989, two recourses were registered against decisions of the CDF, without further clarification as to their nature or their outcome. [26]
  • In 1998, a priest made recourse against a sentence of suspension, but it probably was not admitted to discussion by the Congress of 25 September 2000[27].

However, the competences of the Congregation, defined in Articles 48 to 55[28]  of the Apostolic Constitution Pastor Bonus[29] are very broad, on top of which it also gives its opinion to the Congregation for the Causes of Saints for the title of Doctor of the Church[30], and to the Congregation for Clergy for the approval of catechisms and works of catechetical formation[31].

In addition, these competences have been expanded by the motu proprio Sacramentorum Sanctitatis Tutela, promulgated on 30 April 2001 by Pope John Paul II, by which sexual abuse committed by a cleric on a minor under 18 years was added to the list of delicta graviora reserved to the Congregation for the Doctrine of the Faith.

Without prolonging our discussion unduly, let us remember that the Congregation has the possibility of making extrajudicial decisions pursuant to Article 21 of the norms on the more serious offenses[32], which make reference to canon 1270[33] or to the sense of canon 1722[34] of the 1983 Code, inspired by canons 1956 to 1958 of the 1917 Code. Authors such as Griffin[35] have estimated that this canon permits superiors to immediately take precautionary measures for provisionally removing any priest accused of sexual abuse of minors, even before the ordinary has informed him of the accusations and the evidence which will enable him to defend himself, in accordance with canon 1720 n. 1.

Canon 18[36], however, would justify a contrary position. From a detailed analysis of the sources of canon 1722, John P. Beal believes that the measure of provisional exclusion that is foreseen may be imposed only after a thorough analysis of the situation, since priests retain, before and after being accused, their right to a good reputation (c. 220) and to decent remuneration (c. 282).

1.2. Congregation for the Eastern Churches

The competences of this Congregation derive from Articles 41 to 45 of Regimini Ecclesiae Universae, and 56 to 61 of Pastor Bonus[37].

This Congregation applies and enforces the Code of Canons of the Eastern Churches, and its decisions are the subjects of 30 contentious-administrative recourses, classic cases of exclaustration[38] and resignations[39]  of religious, deposition of a Superior General[40], transfers of parish priests[41], and remuneration or property rights[42].

These recourses show that the administrative justice is effective in the Oriental Churches.

1.3. Congregation for Divine Worship and the Discipline of the Sacraments

In its scope of competence governed by Articles 62 to 70 of the Apostolic Constitution Pastor Bonus [43], the Congregation for Divine Worship and the Discipline of the Sacraments makes clear reference to its juridic activity.

… requests for interpretation, for clarification of liturgical-disciplinary standards, or reporting of irregularities in the field of the sacraments, whether liturgical or disciplinary. These issues are examined and evaluated with a view to being able to offer direction for a suitable solution. […] The competent office has examined and brought to a close cases involving exemptions from priestly obligations, dispensations from irregularities or impediments for candidates for sacred orders, and priestly ordination for permanent deacons or for priests laicized in their time[44].

Unlike the other Congregations, it appeals to the Catholic faithful to help enforce the law, denounce abuses and make hierarchical recourse in cases which could not be resolved at the local level. Unfortunately, too few of the faithful know about the instruction Redemptionis Sacramentum, on certain things to observe and to avoid concerning the Most Holy Eucharist, of which here is an excerpt:

In an altogether particular manner, let everyone do all that is in their power to ensure that the Most Holy Sacrament of the Eucharist will be protected from any and every irreverence or distortion and that all abuses be thoroughly corrected. This is a most serious duty incumbent upon each and every one, and all are bound to carry it out without any favoritism.

We are therefore confident that the Congregation will solve new controversies which may occur, in particular about funerals, knowing that the Congregation for the Doctrine of the Faith has published new norms on this matter, of which this is an extract:

When the deceased notoriously has requested cremation and the scattering of their ashes for reasons contrary to the Christian faith, a Christian funeral must be denied to that person according to the norms of the law[45].

The contentious-administrative recourses identified against the decisions of this Congregation are four in number. They are:

  • The recourse of an American religious against the prohibition of the use of certain elements in a church[46];
  • The recourse of an American layman against a decision relating to the renovation of a parish church[47];
  • The double recourse of a bishop against a change in the name of a church and of a parish[48];
  • The recourse of a layman against the rejection of an edition of the Roman Missal[49].

1.4. Congregation for the Causes of Saints

The Congregation for the Causes of Saints, governed by the Articles 71 to 74 of Pastor Bonus, seems little affected by the administrative justice of the Church.

The main problem encountered in the field comes from the fact that the causes of the rich and powerful are sometimes better treated than those of the humble and the poor[50]. We have been witnesses of tension and suffering on the part of the families and friends of the blessed, saints and unsung martyrs.

A contribution of Canonists without Borders could possibly be useful in this area to assist in the development of records of postulation in poor countries and for poor people.

1.5. Congregation for Bishops

In its field of competence, governed by Articles 75 to 80 of the Apostolic Constitution Pastor Bonus[51], the Congregation for Bishops has promulgated individual administrative decrees which have been the subject of 9 contentious-administrative recourses, half of which relate to the diocese of Lleida in Spain, which has been the subject of recourse by bishops about division of property between two dioceses[52].

1.6. Congregation for the Evangelization of Peoples

The competences of the Congregation for the Evangelization of Peoples and Propagation of the Faith were the result of Articles 81 to 91 of Regimini Ecclesiae Universae. Becoming the Congregation for the Evangelization of Peoples, its competences are now governed by Articles 85 to 92 of Pastor Bonus.

Its decisions have been the subject of 25 contentious-administrative recourses, the majority from priests, following a decision of suspension[53], excardination[54], transfer[55], or loss of the clerical state[56].

These elements show that justice is operational for the priests in mission, and perhaps a little less for religious, who were the authors of only two recourses, concerning resignations[57].

On an other hand, we can see that Canonists without Borders receives a relatively large number of inquiries related to administrative ecclesial controversies in Africa, with a much larger proportion than the number of recourses.

1.7. Congregation for the Clergy

Blessed Pope Paul VI established the Congregation for the Clergy on 31 December 1967, reorganizing the former Congregation for the Council, of which one decision was the subject of recourse. The responsibilities of the Congregation for the Clergy are the subject of Articles 65 to 70 of Regimini Ecclesiae Universae, then Articles 93 to 98 of Pastor Bonus[58].

Here is an excerpt from its 2014 activity report regarding administrative justice:

In the course of 2014, the administrative office of the Congregation for the Clergy has accomplished its work of monitoring the good administration of ecclesiastical goods belonging to public juridic persons[59].

Decisions are the subject of 353 known contentious-administrative recourses, with the distribution of petitioners as below, when they are known:

It should be noted that recourses relating to the obligations of pious associations are the responsibility of the Congregation for the Clergy, and not of the Council for the Laity[60].

1.8. Congregation for Institutes of Consecrated Life and Societies of Apostolic Life

The competences of the Sacred Congregation for Religious and Secular Institutes, which later became the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, are defined by Articles 75 to 80 of Regimini Ecclesiae Universae, then by Articles 105 to 111 of Pastor Bonus[61].

We will not expand on the hierarchical recourses addressed to this congregation, as we have already discussed it in Chapter 6; but we will add some information drawn from its activity report for 2015[62]:

  • 73 penalties of administrative acts and dispensations from of canonical or constitutional norms were granted for questions relating to the novitiate, the profession, priestly or diaconal ordination or the governance of institutes at all levels.
  • 357 questions were assessed, concerning the status, behavior, controversies, and other issues pertaining to consecrated persons, communities and institutes.

We have identified 230 contentious-administrative recourses against decrees of this Congregation, with a breakdown by petitioner as follows:

1.9. Congregation for Catholic Education

In the activity report for this congregation[63], we found no information on the treatment of hierarchical recourses.

Yet, our database includes 23 contentious-administrative recourses provisions relating to decrees of the Congregation for Catholic Institutes, which became the Congregation for Catholic Education in 1988.

The recourses are essentially about transfers or revocations of missions of teachers[64] or rectors[65] ; transfers[66] and non-admissions to seminaries. One recourse relates to the suppression of a theology faculty[67].

 

  1. Recourses to Other Dicasteries

2.1. The Secretariat of State

The state of Vatican City has its own judicial bodies and its own gendarmerie which, in 2016, had executed two arrest-warrants and 33 arrests; and from 2013 to 2016, the Tribunal seized more than 12 million Euros, including one million in 2016, after reporting by the Financial Information Authority (AIF)[68].

The Secretariat of State also intervenes in matters of administrative justice of the Church, insofar as it instructs the administrative recourses referred to the Holy Father, deciding whether to reject or to transmit them to him.

The Second Section of the Apostolic Signatura is not competent to deal with appeals against acts of the Secretariat of State, because it holds that decisions of the Secretariat are political acts, not administrative acts[69].

2.2. Dicastery for the Laity, Family and Life[70]

The result of a merger of the Pontifical Councils for the Laity and for the Family, the Dicastery for the Laity, Family and Life has competence in matters depending on the Apostolic See for the promotion of life and of the apostolate of the laity, for the pastoral care of the family and its mission.

Its section for families has taken on the competences of the corresponding Dicastery, whose decisions were the subject of only one identified recourse, for the resignation of one of the members of this Council[71].

Its section for the laity[72] took on the activities of the Council for the Laity, for which the activity report mentions hierarchical recourses in response to the consultations of new associations:

It has resolved controversies submitted for its consideration by associations of the faithful with administrative recourses[73].

Its decrees are the subject of 38 identified contentious-administrative recourses, 14 of which were made by the laity, 13 by juridic persons, 3 by bishops, 2 by priests, and 6 have no identified petitioner.

An appeal concerning a decree of the Council for the Family was admitted to discussion, but it was subsequently rejected[74].

2.3. Dicastery for Promoting Integral Human Development[75]

The Dicastery for Promoting Integral Human Development, created by the motu proprio of 17 August 2016, comes from grouping four Dicasteries: the Pontifical Council for Justice and Peace, the Pontifical Council Cor Unum, the Pontifical Council for the Pastoral Care of Migrants and Itinerants, and the Pontifical Council for the Pastoral Care of Health Care Workers.

We have not identified any appeal against decrees of this Dicastery, nor against those of other pontifical councils; but Cardinal Turkson, Prefect of the Congregation, devoted an entire book to the battle against corruption in the Church and society. Here is an excerpt:

In the first place, there is the justice that corruption denies, because it denies freedom. […] For the offense of corruption, which is located in the social sphere, the intervention of the State, which ensures the administration of justice, can and should be provided[76].

From our point of view, this recommendation could usefully be applied to the Church, where Pope Francis believes that corruption is not absent, and where an administrative tribunal has been constituted.

2.4. Administration of the Patrimony of the Apostolic See (APSA)

The State of Vatican City has its own justice system, of which there are several organs. In accord with canon 1254, the temporal goods of the Church are intended for specific purposes: « to order divine worship, to care for the decent support of the clergy and other ministers, and to exercise works of the sacred apostolate and of charity, especially toward the needy.”

Two Secretariats are responsible for property belonging to the Holy See,: the Administration of the Patrimony of the Apostolic See (APSA), and the Secretariat for the Economy, established in 2014. By the motu proprio I Beni Temporali of 4 July 2016, Pope Francis clarified the respective competencies of the two organizations, separating clearly and unequivocally the direct management of the patrimony, and control of this management activity.

Nine decisions of this Dicastery have been the subject of canonical recourse, and in at least two cases[77], the College has found a violation of the law by the APSA:

In case Prot. 22221/90 CA, following appeal 18707/86 Prot CA, the Tribunal ruled in favor of a priest against the Administration of the Patrimony of the Apostolic See (APSA), in considering that there was a procedural defect in a decision relating to the appointment of a Extraordinary Professor[78], and it decided in favor of a restoration of the previous situation (restitutio in integrum).

Administrative Justice has therefore worked well with this Dicastery.

2.5. Labor Office of the Apostolic See (ULSA)[79]

In 1988, a recourse against a firing within the Fabbrica di San Pietro was not admitted to discussion[80]. In 1992, the Supreme Tribunal of the Apostolic Signatura was not considered competent to deal with two recourses filed in 1990 by the Labor Office of the Apostolic See and by an employee of the Holy See[81]. In effect, this agency, which was established on 1 January 1989 by Pope John Paul II, has the characteristics of a Tribunal, with a board of conciliation and arbitration, the decisions of which are not subject to recourse[82].

Its 2015 activity report shows its juridic activity:

Approximately 80 workers turned to the APSA, receiving advice and assistance, with the aim of preventing or solving controversies, thereby helping to improve the workplace climate and the quality of work. In 25 cases, the ULSA offered to collaborate with administrators, in order to contribute to clarifying existing standards. In 10 cases, the ULSA was contacted by retirees or their lawyers, for clarification of institutional obligations. […] Two workers and pensioners submitted a formal request to the Director of the ULSA under Article 11 of its statutes. One, which was declared inadmissible, was connected to a recourse to the College of Conciliation and Arbitration of the ULSA. The other was declared closed, as a result of the abandonment on the part of the person concerned[83].

2.6. The Roman Rota

Article 126 of Pastor Bonus qualifies the Roman Rota as a court, which mainly issues judgments subject to recourse to the Supreme Tribunal, in accord with Article 122 of Pastor Bonus which is beyond the scope of our study. It also issues administrative acts concerning alimony, which have been the subject of several contentious-administrative recourses, cited in the activity reports of the Second Section[84].

2.7. The Apostolic Signatura

It can be observed that Article 121 of Pastor Bonus employs the term “Dicastery” with regard to the Apostolic Signatura, confirming the fact that it is both a court and an administrative body. In this regard, we will consider to be “administrative acts” those decisions of the Second Section not to admit some recourses to discussion.

These decisions are indeed subject to recourse to the College of the Second Section, and they are also an important part of the recourse, even if the publications of the Tribunal pass over them in silence:

  • The activity report that it prepares each year for the Acta Apostolicae Sanctae is silent on the fact that many of the decrees of the Apostolic Signatura are the subject of recourse to the College of Fathers, preferring instead to indicate the Dicastery of origin for those decrees not admitted to discussion;
  • The compendium of case law of the promoter of justice of the Tribunal[85] indicates recourses against the decisions of the Congress of non-admission to discussion; but it suggests that recourses against the decisions of the Congress would not have been admitted to discussion by the College, while the College reviewed and confirmed the decision of the Congress not to admit them to the discussion.

In light of our database, we will consider that the College has given a negative response to the recourse, asserting that there is no violation of law in the decision of the Congress. Finally, our database reports 122 recourses to the College of Fathers against decisions of the Secretary or the Congress of the Second Section[86], a fact which shows that the possibility of recourse is not an empty word. Nevertheless, the low number of recourses accepted[87] prompts a question that we will discuss in the third Part of this book.

[1] AAS 91 (1999) 629-699.

[2] We will rely mainly on the last published report, for the year 2015.

[3] Lefebvre (Mgr Charles), Actes récents du Saint Siège, in L’année canonique, 1971, p. 655 673.

[4] Punderson (Joseph R.), hierarchical recourse to the Holy See: Theory and practice, CSLA Prodeedings 62 (2000), 19-47.

[5] Marchesi (Mario), « I ricorsi gerachici presso i dicasteri dalla Curia », Ius ecclesiae, 8 (1996) 71-96.

[6] Martens (Kurt), Protection of Rights… », op. cit. p. 681.

[7] Cf. the chapter on the database.

[8] Pastor Bonus Art. 2 — § 1. By the word « dicasteries » are understood the Secretariat of State, Congregations, Tribunals, Councils and Offices, namely the Apostolic Camera, the Administration of the Patrimony of the Apostolic See, and the Prefecture for the Economic Affairs of the Holy See.

  • 2. The dicasteries are juridically equal among themselves.
  • 3. Among the institutes of the Roman Curia are the Prefecture of the Papal Household and the Office for the Liturgical Celebrations of the Supreme Pontiff.

[9] Secretariat of State, Secretariat for the Economy, Council for the Economy, Council for Social Communications.

[10] Apostolic Penitentiary, Roman Rota, Apostolic Signatura.

[11] The Pontifical Councils for the Laity, for the Promotion of Christian Unity, for the Family, Justice and Peace, Cor Unum, for the Pastoral Care of Migrants and Itinerants, for the Pastoral Care of Health Care Workers, for the Interpretation of Legislative Texts, for Interreligious Dialogue, for Culture, for Social Communications, for the Promotion of the New Evangelization.

[12] In jurisprudence, the Tribunal is often listed as HST, huius supremi tribunalis

[13] The actual percentage is, in our opinion, more important than the figure indicated, because the Activity Report of the Holy See (AAS (2004), p. 726) indicates that 100% of the cases considered in plenary consist of recourses against decrees of Congregations, while some of them relate to recourses against decrees of the Tribunal of non-admission to the discussion.

[14] Art. 48 — The proper duty of the Congregation for the Doctrine of the Faith is to promote and safeguard the doctrine on faith and morals in the whole Catholic world; so it has competence in things that touch this matter in any way.

Art. 51 — To safeguard the truth of faith and the integrity of morals, the Congregation takes care lest faith or morals suffer harm through errors that have been spread in any way whatever.

Wherefore:  1. it has the duty of requiring that books and other writings touching faith or morals, being published by the Christian faithful, be subjected to prior examination by the competent authority;

  1. it examines carefully writings and opinions that seem to be contrary or dangerous to true faith, and, if it is established that they are opposed to the teaching of the Church, reproves them in due time, having given authors full opportunity to explain their minds, and having forewarned the Ordinary concerned; it brings suitable recourses to bear, if this be opportune.
  2. Finally, it takes good care lest errors or dangerous doctrines, which may have been spread among the Christian people, do not go without apt rebuttal.

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.

[15] For the International Theological Commission.

[16] Ratzinger (Cardinal Joseph), « Entretiens sur la foi », remarks reported by Vittorio Messori, Paris, 1985, Fayard, p. 25/252.

[17] Amato (Mgr Angelo), then secretary of the Congregation for the Doctrine of the Faith, « The Congregation for the Doctrine of the Faith has always been a Tribunal, » in Zenit, 1 April 2004.

[18] Ratzinger (Cardinal Joseph), « Entretiens sur la foi », op. cit. p. 78/252.

[19] According to canons 751 and 1364, heresy is punishable by excommunication.

[20] ASS (2015), p. 621.

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

[22] The CDF specifies that in this case, it may not be a criminal decision.

[23] Prot. 221/68 CA.

[24] This is the case of recourse Prot. 1123/69/CA made by the Reverend Antonius, 65 years old, who claimed the continuance of his salary, whereas it had declined when he became a priest emeritus. The Congress did not allow the case to enter discussion, and the College confirmed the decision of the Congress.

[25] The recourses for which the registration no. is unknown, having been the subject of a decision of the Congress on 28 November 1987. Cf. ASS (1988), p. 1403.

[26] The recourses for which the registration numbers are unknown, cited by ASS (1988), p. 1403 and ASS (1990) p. 1203.

Prot. 29064/88/CA, having been the subject of a decision of the Congress on 25 September 2000. Cf. ASS (1998), p. 883 and ASS (2000), p. 893.

[27] Prot. 29064/88/CA, having been the subject of a decision of the Congress on 25 September 2000. Cf. ASS (1998), p. 883 and ASS (2000), p. 893.

[28] Cf. supra.

[29] Apostolic Constitution Pastor Bonus, 25 June 1988 (DC 85 [1988] 897-912; 972-983).

[30] Cf. article 73 de Pastor Bonus.

[31] Cf. article 94 de Pastor Bonus.

[32] Art. 21 § 1. § 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.

[33] 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 canons 1342-1350, setting forth the reasons in law and in fact at least briefly.

[34] Can. 1722 — To prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist. Once the cause ceases, all these measures must be revoked; they also end by the law itself when the penal process ceases..

[35] Griffin (B. F.), « Canon 1722: Imposition of Administrative Leave Against an Accused”, in Roman Replies and CLSA Advisory Opinions, 1998, p. 103-108.

[36] Can. 18 — Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.

[37] Cf. Chapter 2.

[38] Prot 19323/87 CA

[39] Prot. 22637/91 CA ; Prot. 22638/91 CA ; Prot. 22639/91 CA ;

[40] ASS (1980), p. 1029.

[41] Prot. 31945/01 CA

[42] ASS (1980), p. 1029.

[43] Art. 62 — The Congregation for Divine Worship and the Discipline of the Sacraments does whatever pertains to the Apostolic See concerning the regulation and promotion of the sacred liturgy, primarily of the sacraments, without prejudice to the competence of the Congregation for the Doctrine of the Faith.

Art. 63 — It fosters and safeguards the regulation of the administration of the sacraments, especially regarding their valid and licit celebration. It grants favours and dispensations not contained in the faculties of diocesan bishops in this matter.

Art. 66 — The Congregation provides attentive supervision to ensure that liturgical norms are accurately observed, and that abuses are avoided and eliminated where they are found to exist.

Art. 68 — It is also competent to examine, in accordance with the law, cases concerning the nullity of sacred ordination.

[44] ASS (2015), p. 640-641.

[45] Instruction Ad resurgendum cum Christo 15 August 2016, on the burial of the dead and the preservation of ashes in case of cremation.

[46] Prot 18881/87/CA : recourses of a religious of the Diocese of Miami, against a decision of 30 November 1986, not admitted to discussion by a decision of the Congress of 30 October 1990, confirmed by the College on 8 May 1993. Cf. in particular Ministerium Justitiae, p. 603-606.

[47] Prot 21024/89/CA : recourse of a layman of the Diocese of Cincinnati, not admitted to discussion by a decision of the Congress of 26 January 1990. Cf. in particular Ministerium Justitiae, p. 461-466.

[48] Prot. 29104/98/CA, cited by the AAS (1998) p. 883 and AAS (2002), p. 847 and Prot. 29341/98/CA, cited by AAS (1998), p. 883 and by AAS (2002) p. 849, having been the subject of a decision of the Congress of 22 July 2002, the content of which has not been revealed.

[49] Cas non référencé, enregistré en 1989, rejeté in limine, car déposé hors délais. Cf. ASS (1988), p. 1404.

[50] Cases not referenced, recorded in 1989, rejected in limine because filed outside of the time-limit. Cf. AAS (1988), p. 1404.

It is sufficient to note the distribution of the saints by continent, to the detriment of the poorer countries compared to the rest.

[51] Art. 75 — The Congregation for Bishops examines what pertains to the establishment and provision of particular Churches and to the exercise of the episcopal office in the Latin Church, without prejudice to the competence of the Congregation for the Evangelization of Peoples.

Art. 76 — This Congregation deals with everything concerning the constitution, division, union, suppression, and other changes of particular Churches and of their groupings. It also erects military ordinariates for the pastoral care of the armed forces.

[52] Prot. 29550/98 CA ; Prot. 29550/98 CA B ; Prot. 29550/98 CA C ; Prot. 36517/05 CA ; Prot. 37106/05 CA ; Prot. 37766/05 CA.

[53] Prot. 45545/11 CA

[54] Prot. 41703/08 CA

[55] Prot. 24487/93 CA ; Prot. 37521/05 CA

[56] Prot. 24604/93 CA ou Prot. 24635/93 CA

[57] Prot. 20783/89 CA and case cited in AAS (1989), p. 1218, without registration number.

[58] Art. 93 — Without prejudice to the right of bishops and their conferences, the Congregation for the Clergy examines matters regarding priests and deacons of the secular clergy, with regard to their persons and pastoral ministry, and with regard to resources available to them for the exercise of this ministry; and in all these matters the Congregation offers timely assistance to the bishops.

Art. 94 — It has the function of promoting the religious education of the Christian faithful of all ages and conditions; it issues timely norms so that catechetical instruction is correctly conducted; it gives great attention so that catechetical formation is properly given; and, with the assent of the Congregation for the Doctrine of the Faith, it grants the prescribed approval of the Holy See for catechisms and other writings pertaining to catechetical instruction. It is available to catechetical offices and international initiatives on religious education, coordinates their activities and, where necessary, lends assistance.

Art. 95 — § 1. The Congregation is competent concerning the life, conduct, rights, and obligations of clergy.

  • 2. It advises on a more suitable distribution of priests.
  • 3. It fosters the ongoing education of clergy, especially concerning their sanctification and the effective exercise of their pastoral ministry, most of all in the fitting preaching of the Word of God.

[59] ASS (2014), p. 722, translated from Italian.

[60] Prot 13782/81 CA

[61] Art. 105 — The principal function of the Congregation for Institutes of Consecrated Life and for Societies of Apostolic Life is to promote and supervise in the whole Latin Church the practice of the evangelical counsels as they are lived in approved forms of consecrated life and, at the same time, the work of societies of apostolic life.

Art. 106 — § 1. The Congregation erects and approves religious and secular institutes and societies of apostolic life, or passes judgement on the suitability of their erection by the diocesan bishop. It also suppresses such institutes and societies if necessary.

[62] Example: ASS, (2015), p. 746.

[63] ASS 2015 p. 748-765

[64] Prot. 10977/79 CA ; Prot. 27795/97 CA

[65] Prot 37707/05 CA; Prot. 30520/99 CA.

[66] Prot. 30435/99 CA; Prot. 30520/99 CA; Prot. 32728/01 CA; Prot. 33447/02 CA ; Prot 37707/05 CA…

[67] Prot. 30678/99 CA ; Prot. 30677/99 for non-admission to the seminary ; Prot. 22396/91 CA

[68] Milano (Gian Piero), Promoter of Justice, speech at the inauguration of the Judicial Year of Vatican City, 18 February 2017.

[69] Prot. 214/70 CA, declaration of the Supreme Tribunal of the Apostolic Signatura, December 28, 1981,cited by Michael Landau, Amtsentbehung… op. cit. p. 321, note 306

[70] As of 15 August 2016, the Dicastery combines the competencies of the Pontifical Councils for the Laity and for the Family.

[71] Prot. 18972/87 CA.

[72] The Pontifical Council for the Laity is competent in those matters pertaining to the Apostolic See regarding the promotion and coordination of the apostolate of the laity and, generally, in those matters respecting the Christian life of laypeople.

[73] ASS (2014), p. 845.

[74] Prot 18972/87 CA.

[75] As of 1 January 2017, World Day of Peace, the Dicastery combines the expertise of the Pontifical Councils for Justice and Peace, Cor Unum, Pastoral Care of Migrants and Immigrants, and Health Care Workers.

[76] Turkson (Card Peter Kodwo Appiah) Corrosione, Combattere la corruzione nella Chiesa e nella società, Milano Rizzoli, June 2016,

[77] Prot. 22113/90 CA cited by ASS (1992) p. 1115 et ASS (1993) p. 1272

[78] Prot. 22221/90 CA cited by ASS (1993), p. 1271 et 1272, after recourse Prot 18707/86 CA,

[79] This Office was established on 1 January 1989 by Pope John Paul II. It intervenes in matters of labor law for the employees of the Holy See.

[80] ASS (1978) p. 625.

[81] Prot. 22046/90 CA et 22583/91 CA cités par ASS (1992) p. 1116. Decision of the Congress of  28 November 1992.

[82] Cf. Statutes of the Organization: www.ulsa.Va/content/ulsa/it/Chi siamo/Statuto1.html.

[83] ASS (2015), p. 1093, Translated from Italian.

[84] For 116 cases, we have been able to identify the Dicastery of origin.

[85] Montini (Gian-Paolo), Conspectus decisionum, Periodica 103 (2014) 27- 66: « De recursus adversum decretum rejectionis a Congressu latum. Recursus non admittitur ad disceptationem »

[86] For 116 cases, we have been able to identify the Dicastery of origin.

[87] Prot. 12300/80 CA ; 22113/88 CA ; 23443/92 CA ; 23444/92 CA ; 23445/92 CA ainsi que deux cas cités par ASS (1981) p. 951 et ASS (1989), p. 1218.

Justice in the Face of Charisms

Chapter 7: Administrative Justice in the Face of Charisms

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

This chapter differs from the preceding ones, insofar as it does not concentrate so much on the jurisprudence of hierarchical or contentious-administrative recourse, but rather on administrative practices of clerics in the face of charisms.

In the first part, the analysis focuses on the phenomenon of private revelations, with the applicable law, the tests and sanctions imposed on seers and their friends, and finally on contentious-administrative recourse in both ecclesiastical and civil court systems[1].

The second part focuses on justice in the face of the new religious movements and so-called sects, with the applicable law, the sanctions imposed and possible recourses.

  1. Private Revelations

At the time of Jesus, His uncle Zechariah, His mother Mary and His foster father Joseph received visits from a angel, while His apostles received the visit of the Risen Jesus[2]. Subsequently, a large number of saints have received private revelations[3]. In effect, the

[…] apparitions and supernatural signs scan the course of history, they enter into the real life of human vicissitudes and accompany the path of the world, surprising believers and non-believers.[4]

Even today, there are more private revelations that we think, but most of them remain secret. This is typically the case when they are directed to an individual to encourage or assist him to accomplish his vocation. Sometimes the confidence of a friend or the reading of a book allows us to become aware of them as, for example, in the case of H.E. Jean-Pierre Kutwa, Cardinal Archbishop of Abidjan:

You know, Francesco, (as he likes to call the author) during this period in the hospital, I was visited by the One that I had chosen to serve: Jesus Christ. One day, I spent several minutes in atrocious pain, I suffered terribly and suddenly, everything stopped and I fell asleep. It was at this time that I saw Jesus. He was very bright and in a spontaneous gesture, I was immediately lying at His Feet and I clutched them in my arms.  Jesus asked me: « Why do you fear? Do not be afraid. Your mission is not complete. Go back. »[5]

This type of private revelation affects not only the baptized, but also atheists and people of other religions:

The 1929 law of the Soviet Union, today repealed, prohibited religious activities and punished the recalcitrant in order to encourage the dissemination of atheism. In this context, many witnesses testify to the conversion of atheists by private revelations or dreams. Closer to us in Algeria, the order of 28 February 2006 regarding Muslim worship severely punishes « anyone who incites, forces or uses means of seduction intending to convert a Muslim to another religion » or which « shakes the faith of Muslims, » and so Catholics are discreet. In contrast, the Holy Spirit is at work and the Archbishop of Algiers testified that many Muslims have come knocking at the door of churches because they have had a dream that speaks to them of Jesus Christ as the Savior.

We define these revelations as “private revelations of a personal nature”.

 

Conversely, other private revelations contain messages that the recipient is asked to make known. These revelations, that we call « private for a public purpose, » pose a cultural problem in the Western world, marked by materialism and rejecting the very idea of God. They also pose a serious problem of discernment for the Church as to the nature and content of the alleged apparitions, and as to the events which accompany them. This is exactly what the Congregation for the Doctrine of the Faith says in its letter on the hierarchy and the charisms:

Among the charismatic gifts, freely distributed by the Holy Spirit, many are received and lived out by persons within the Christian community who have no need of particular regulations. When, however, a gift presents itself as a “founding” or “originating charism”, this requires a specific recognition so that the richness it contains may be adequately articulated within the ecclesial communion and faithfully transmitted over time. Here emerges the decisive task of discernment that appertains to the ecclesial authorities. Recognizing the authenticity of a charism is not always an easy task, it is, nonetheless, a dutiful service that pastors are required to fulfill[6].

The U.S. website « Miracle hunter[7] » lists nearly 700 private revelations[8], with a strong acceleration over time: there is on average one per year in the years 1900 to 1925, then about 35 on average per year in the years 1970 to 2000[9], with a total of 410 revelations in the period 1967 to 2016. Abbot Laurentin[10] explains this sudden increase, not by a greater frequency of private revelations, but by the evolution of the canon law in force:

This is due to the abolition of canon 1399, §5 of the old Code of Canon Law which prohibited « books and pamphlets that talk about new apparitions, revelations, visions, prophecies and miracles, or launch new devotions, even under the pretext that they are private » (and canon 2318, which excommunicated offenders)[11].

 

 

          Number of Apparitions per decade identified by Miracle Hunters

 

Without counting that of Lipa, which we will discuss below, the Church has recognized 16 Marian apparitions, including five during the period of our study[12]. The popular piety which accompanies them is one of the expressions of the sensus fidei, but it goes against the current of rational society today:

Apparitions, honored by popular piety in our sanctuaries, are disregarded in the theological community, including laypersons.[13]

This hypothesis may in particular be illustrated by the remarks of the Bishop of Quimper and Léon about Kérizinen:

The Christian faith is not of the order of the senses: it is the home of Jesus Christ, of His Gospel, of His Church. […] Can those who are led astray by these alleged revelations open their eyes to the sole truth of Jesus Christ, which does not exclude the Virgin but includes her in her place, instead of locking themselves into a ghetto without opening or without end! May these persons meditate on these strong words of Saint John of the Cross, an authentic mystic and also a Doctor of the Church: « In giving us His Son as He has done, He who is His last and final Word, God has spoken to everyone and only once, and has nothing more to say.”[14]

Certainly, revelation was closed with the death of the last apostle, as Saint John of the Cross wrote when commenting on Heb 1, 1-2, but the catechism adds:

Yet even if Revelation is already complete, it has not been made completely explicit; it remains for Christian faith gradually to grasp its full significance over the course of the centuries. Throughout the ages, there have been so-called « private » revelations, some of which have been recognized by the authority of the Church…. It is not their role to… complete Christ’s definitive Revelation, but to help live more fully by it in a certain period of history[15].

Since there is tension between popular faith and the rationality of some theologians[16], let us now examine the applicable canon law.

1.1. The Law on Private Revelations

When a prophet speaks in the name of God, or when a person makes known a private revelation of a public nature, the result is invariably tension between him and the authority of the Church, because both of them think that they are acting and speaking in the name of God. This situation poses a major problem of discernment, for the Local Ordinary confronted with the words of Saint Paul:

Do not quench the Spirit. Do not despise prophetic utterances. Test everything; retain what is good. (1 Thessalonians 5, 19-21)

But also of Saint Matthew:

You will hear of wars and reports of wars; see that you are not alarmed, for these things must happen, but it will not yet be the end.[…]Many false prophets will arise and deceive many. (Matthew 24, 6 and 11)

Three regimes of positive law have governed the method of discernment during the period under study:

  • On December 29, 1966, shortly before the beginning of our study period, the Congregation for the Doctrine of the Faith published a decree approved by Pope Paul VI on 14 October 1966[17], repealing canons 1399 and 2318[18] of the 1917 Code on the imprimatur and religious books, and relaxing ecclesiastical discipline relating to apparitions, recognized or not[19]. By contrast, there did not exist at that time specific procedural standards on the manner of handling them, outside of the general principles of law;
  • In November 1974, the annual plenary session of the Congregation for the Doctrine of the Faith was working on private apparitions, and its conclusions were sent to the bishops, but not published[20];
  • On 14 December 2011, the Congregation for the Doctrine of the Faith published the criteria for discernment, to enable those concerned to know what the applicable law is[21]. In the preface to this publication, the Cardinal Prefect indicated:

It is my firm hope that the official publication of the Norms regarding the manner of proceeding in the discernment of presumed apparitions or revelations can aid the Pastors of the Catholic Church in their difficult task of discerning presumed apparitions, revelations, messages or, more generally, extraordinary phenomena of presumed supernatural origin.[22]

 

These procedural norms encourage the ecclesiastical authority to act with caution, in three stages:

  1. Judge first of all according to positive and negative criteria[23];
  2. Then, if this review leads to a favorable conclusion, allow for certain public manifestations of worship or devotion, observing them with the greatest caution (which is equivalent to the formula: pro nunc nihil obstare);
  3. Finally, in the light of time and of experience (in particular the abundance of spiritual fruit provided by the new devotion), render, if applicable, a judgment on its authenticity and supernatural character.

In order to carry out the first step, the Congregation encourages authorities to carry out a serious investigation of the facts, which raises a question as to whether this recommendation creates a right for the faithful concerned, or not.

Let us hope that these new procedural elements will be respected in the future and that we will not engage in ad hominem battles that conceal power-games, as was the case, for example, in the apparitions at Tilly-on-Seulles, in Normandy, of which the Archbishop of Paris blocked recognition, while it was on the right track in Rome[24].

1.2. The Difficulties Encountered

In the past, the serious investigation foreseen in order to obtain a positive judgment on the character of the facts was very often rejected in favor of a hasty application of negative criteria, interpreted unilaterally, without sometimes even questioning the persons concerned

  • At Garabandal, Monsignor Juan Antonio del Val Gallo opened a new investigation (completed in 1986), taking into account the considerable defects observed in the work of the First Committee[25];
  • At Kérizinen in Brittany (France), a duplicate prohibition was imposed by the Bishop of Quimper and Léon on 12 October 1956, and again on 24 March 1961, prohibiting the faithful from building a private oratory and going to pray the rosary on the premises of the alleged apparitions, while no investigation was taking place[26].
  • At Montichiari in Italy, Mgr. Abate Francesco Rossi, then parish priest of the parish, said in private that he was absolutely convinced of the authenticity of the apparitions of the « Rosa mystica,” [27], and that the investigation was canonically biased: “Bishop Giacinto Tredici appointed a commission of inquiry. But in my opinion, the latter went to work with a definitely negative bias and in no way did he do his duty, because 1. No miracles were examined, 2. No witnesses were heard, 3 A physician declared Pierina Gilli to be a drug addict, which was absolutely malicious slander.”
  • At Dozulé in France, Father Curty severely criticized the seriousness of the canonical investigation carried out before 1998[28], while the rejection of the message seemed to stem from spurious considerations[29]In 2011, the bishop resumed the investigation, but he received a letter from the Congregation for the Doctrine of the Faith asking him « to see fit to put an end to any investigation without delay« , considering the fact that his predecessor had writes: « I can not discern the signs that would authorize me to declare authentic the apparitions that are reported ».[30].
  • At Lipa, in the Philippines, neither the bishop of the place at the time of the apparitions, nor his coadjutor were interviewed during the investigation carried out by their successors in 1950. Upon his arrival in 2003, the new Archbishop, Mgr. Ramon Argüelles, found no report in the archives of the Diocese. The new investigation that he had carried out in 1991 led to a contrary result, which enabled him to recognize the supernatural nature of the apparition and the rain of roses that happened afterwards. He himself wrote in the decree of recognition: “The 1951 decree, which denied the supernatural character of the facts was ‘from the beginning’ tainted by a ‘shadow of doubt,’ the fact that the bishop-signatories of the decree who were opposed ended by declaring, at the end of their lives, that they believed in the veracity of the apparitions.” [31]. According to Rafael M. Villongco[32], the members of the Commission of inquiry were forced to sign the decree under threat of excommunication.

Aware of the difficulties resulting from the tension between charisms and authority, Pope Francis approved the 14 March 2016 letter Iuvenescit Ecclesia of the Congregation for the Doctrine of the Faith, on the relationship between hierarchical and charismatic gifts in the life and mission of the Church:

Different charisms have never ceased to arise throughout the history of the Church; yet, it is only in recent times that a systematic reflection on these themes has been developed. This fact is due historically to the Montanist schism, from Christian antiquity, and then to the medieval apocalyptic doctrines which left a long-lasting negative mark on every charismatic claim, associated with an ethereal epoch of the Holy Spirit. Lumen Gentium totally overcomes this problematic legacy, distinguishing between hierarchical and charismatic gifts, and underlining « their difference in unity.” These graces, from the more eclectic to the more simple and the most widely disseminated, should be received with thanksgiving and bring consolation[33].

The Congregation’s document specifies the criteria for the discernment of charisms, one of which consists in the acceptance of the periods of testing that their beneficiaries have to undergo on the part of the ecclesiastical hierarchy.

  1. f) Because a charismatic gift may imply “a certain element of genuine originality and of special initiative for the spiritual life of the Church” and in its surrounding “may appear troublesome”, it follows that one criteria of authenticity manifests itself as “humility in bearing with adversities”, such that: “The true relation between genuine charism, with its perspectives of newness, and interior suffering, carries with it an unvarying history of the connection between charism and cross”. Any tensions that may arise are a call to the practice of greater charity in view of the more profound ecclesial communion and unity that exists[34].

The question then arises as to whether passive acceptance, which constitutes one of the criteria for discernment, is or is not compatible with the canonical possibility offered to the faithful to claim their rights, taking into account the common good of the Church.

To try to answer this, let us look at what types of tests are imposed on the seers of our time, and what answers are given.

1.3. The Tests Imposed

Once the « serious » investigation has been conducted, the Congregation for the Doctrine of the Faith recommends to the competent authorities an appropriate approach, depending on the types of situations encountered, including sanctions if necessary:

the competent Authority can intervene motu proprio and indeed must do so in grave circumstances, for example in order to correct or prevent abuses in the exercise of cult and devotion, to condemn erroneous doctrine, to avoid the dangers of a false or unseemly mysticism, etc[35].

Dean Philippe Greiner illuminated this concept of abuse in his thesis on the legal framework of proselytism, distinguishing between proselytism of good and bad faith:

Depending on the circumstances, the practice of bad-faith proselytism can be considered a fault, and it can justify disciplinary measures, or correspond to an offense punishable by canon law, and lead to the application of a penalty for physical persons.[36]

His remarks may apply to private revelations, the beneficiaries of which apply to themselves the words of the Apostles: « It is impossible for us not to speak about what we have seen and heard » (Acts 4,20), and a fortiori: « We must obey God rather than men » (Acts 5,29). Philippe Greiner then described two main disciplinary measures provided by canon law in regard to persons who would be guilty of bad-faith proselytism, or at least considered as such, namely the withdrawal of pastoral care and the suppression of an association. We will expand the debate, distinguishing between three types of persons sanctioned:

  • The beneficiaries of the alleged revelations, and their friends;
  • The parish priests and religious who accompany them;
  • The pilgrims who practice a particular form of devotion related to these revelations.

We will then examine the paths of recourse, and the manner in which the obligations and the rights of the faithful are taken into account.

1.3.1. Sanctions Against « Seers and Friends

Abundant literature on private revelations provides a lot of evidence of the disciplinary measures that the Church has imposed on the faithful benefiting from private revelations, and on their friends.

The simplest measure is to leave the seer in the shadows, and to collect the fruits of the revelation within the parish:

In 1980, in the heart of the Muslim quarter of Anoumambo in Abidjan, Gabriel, an immigrant from Burkina Faso, was requested by his neighbors to bury a Christian left without burial. Having done so, he realized that the Christians of the neighborhood do not know each other. He said the rosary with those who gathered and their number increased, even though he began to be afraid of the Muslims who surrounded them. Then he had a dream: the Virgin Mary prompted him not to be afraid, and to build a chapel in this place. Today, the Chapel « Saint Mary Bangtaba[37] » is attached to the Parish of Saint Peter of Anoumambo and will become an independent parish dedicated to Mary Mother of God. The dream was forgotten and Gabriel is now let alone and bedridden.

Here is another example in which the « visionary » was submitted to testing before the bishop recognized the apparition:

In 1931, Elisabeth Ravasio became a sister and then Mother Eugenia[38], in the Congregation of Our Lady of the Apostles, lived in France in a series of ecstasies and of mystical experiences. She conversed with the Father, imploring his mercy on the world and receiving the stigmata, in accordance with her desire to suffer with Jesus. On July 1, 1932, she received her first message of the Father for mankind[39], and her case was submitted to Mgr. Clot, Bishop of Grenoble. In September 1933, the bishop appointed a Commission of inquiry on the facts. The examiners did not believe her at first glance, and their vexation increased until they themselves locked her in the Saint John of God psychiatric hospital, explaining to her superior: « This is a women’s sanitarium, and she will remain there until she tells the truth. She will remove her habit and veil, and will no longer receive communion or engage in meditation or the Way of the Cross: she will be able to attend Mass. Then we will send her to Italy where she will be put in prison for the evil that she did to the Church of France by her interventions of the Father.”The Sister Superior had her put out and, on 28 December, she ordered her to leave the novitiate and go to another home, as a canonical penalty. By order of the Bishop, she left for Pommiers… for 8 days. Then the investigation resumed, and the impression of the theologians evolved positively. Toward 1935, the Commission of inquiry issued a favorable opinion, and toward 1943, Mgr. Caillot concluded 1.) the virtues of Sister Eugenia were solid; 2.) she had a character that was precise, legitimate and appropriate to her mission [contained in the messages] from a doctrinal point of view; 3.) that the intervention was supernatural and divine was the only logical and satisfactorily explanation for the established facts, 4.) the finger of God was present.

 

In this episode, which happened before the Second Vatican Council but is still not settled today, we will retain the surprising nature of the canonical penalty that was officious (confinement in a psychiatric hospital[40]) and official (the transfer to Pommiers), the sanctions that were imposed on Sister Eugenia “for the evil that she did to the Church in France.” How is she evil, since the supernatural character of the revelations was officially recognized by the Local Ordinary?

Let’s go on to the second episode of her life, her election as Superior General of her Congregation:

On 7 August 1935, during the General Chapter of the Congregation N.D. of the Apostles, Elisabeth was elected Superior General and then re-elected on 7 August 1947. Her success was noteworthy, to the extent that the number of houses went from 50 in 1932, to 144 in 1944, and she was the inspiration for the work of Raoul Follereau among the lepers, and the origin of the world center of the leper in Adzopé in the Ivory Coast. With regard to this, her congregation received the civic crown from the hands of the President of the French Republic, on 4 June 1950 in Paris. This was the same date that Mother Eugenia was removed at the request of the Congregation of Propaganda Fide, which made her sign a letter of resignation « on the grounds of incapacity. » What did she do wrong? We know that she was denounced in Rome by a jealous sister who wanted to be appointed Secretary, in order to be able to travel with her. Apparently she did not know what was alleged against her and was not able, or perhaps did not want, to defend herself. She then endured significant tribulations in the repeated attempts to take away, and then return her religious habit. She founded various works for the poor, and “Catholic Unity,” which was created in 1953 and recognized as a Pious Union in 1964. On several occasions, administrative decisions were imposed on her to close the houses that she had established, and to move to another city. Each time she obeyed, provoking the non-comprehension of the sisters who had followed her: « We are being expelled? But what have we done? » Mother Eugenia testified: « The Archbishop of Reggio installed as Superior and Director General three people, without these appointments having been approved by the houses. I was seen as a simple boarder, having no voice in the Chapter, prohibited from going to religious and civilian authority. I was prohibited from working with Catholic Unity […] For 11 years, from 1957 to 1968, I lived in contradiction! As soon as I would begin to do something for our work, they would prevent me from continuing… » Although the Holy See intervened in her favor in 1966, the memory of Mother Eugenia is today tarnished by a dossier of various issues, kept secret from the mother house of the Sisters N.D. of the Apostles, and by a civil suit brought by her detractors. Currently, a growing number of faithful Catholics would like a light to be shined on this matter, including among them the Sisters of the Congregation N.D. of the Apostles.

 

Here a canonical sanction which consisted in the revocation of pastoral assignments of the three superiors of the houses of Catholic Unity, and the impeding of voting rights of Mother Eugenia within her own congregation. The reasons that justify these sanctions are not known, but they have without doubt a link to a private revelation, whose supernatural character has not yet been recognized[41]. Even if the case of Mother Eugenia is old, it concerns our study, because the matter is not closed today. In effect, the Chancellor of the Diocese of Grenoble continues to make administrative decisions relating to Mother Eugenia, for example by refusing, August 26, 2014, to open its archives for the present research work:

We do not communicate regarding the records pertaining to Mother Eugenia Ravasio.

Shortly after, Pope Benedict XVI responded to a fellow Bavarian who contacted him to ask for the institution of a feast of God the Father in the month of August, as requested in the messages of the Father to Mother Eugenia. He replied that the case has already been decided negatively in the 9 May 1897 encyclical letter Divinum Illud Munus of Leo XIII[42]. In addition to the fact that this information is little known, it seems that theologians could easily find a solution, in establishing for example the feast of the Merciful Father, on the occasion of the Year of Mercy.

Let us return to the case of Lipa, in the Philippines:

The sisters received an order to destroy all the evidence relating to the apparition, the Bishop and his Coadjutor were transferred, as was the Superior of Carmel. All those who were directly related to the apparition had to suffer. The Carmel was quarantined. A psychiatrist, Dr. Pardon, threatened to intern Teresina if she persisted in her testimony. Later, her admission to Carmel was denied because of the apparitions, under the pretext that she was away some time of Carmel, whereas she had obtained permission for this[43].

 

Let us look at an actual case which occurred in Burundi, recounted below from several witnesses[44] which agree as to the facts, but not as to their interpretation[45]:

From 1990 onwards, a peasant by the name of Eusébie Ngendakumana (Zebiya in Kirundi), declared that she had benefited from private revelations from the Most Holy Virgin Mary, presenting herself under the name « Queen of Africa.” The apparitions occurred first on her property at a place called Businde, in the parish of Rukago, in northern Burundi, and then in the capital, Bujumbura. Little by little, people associate with her, and they testified to graces and conversions in abundance. Irritated by the frequent prayer vigils, neighbors complained to the civil authorities, who stopped the visionary and her entourage, and beat some of them so much that they fainted. On 21 October 2012, an altercation occurred between the friends of Zébiya, who wanted to enter the church of Rukago, and the priest who wanted to prevent them[46], such that the civil authority was called in to restore order. In November 2012, the Bishop of Ngozi strictly prohibited all worship at Businde and requested that Ms. Eusébie and her « followers » to cease all activity detrimental to the unity and communion of the Church. In January 2013, some students were expelled from the University of Ngozi because they issued a « prophetic » publication considered « deceptive » by University authorities. They complained and won their case at the Tribunal de Grande Instance of Ngozi; but the University refused to allow them to return, because it depends on the bishop. In March and April 2013, the police shot projectiles at the followers, killing between five and ten people, arresting more than two hundred of them and condemning some to sentences of five months to six years in prison. In July 2013, the site of Businde was transformed into a military camp, while the orphanage which had been built by Zebiya and her friends was demolished[47].

 

In this case, the ecclesiastical administrative decisions against Zebiya and her friends are rather questionable[48]. We can however bemoan a clear lack of dialogue that might have allowed them to respect the discernment of the bishop, in particular in the light of the significance of the investigation provided for by the norms. One can also wonder about the degree of collusion between the Church and the State, which led to the arrest, injuries and even deaths of many faithful Catholics.

Returning to our issue of the link between passive acceptance, and the need to claim one’s rights while taking into account the common good of the Church, we find that in all the cases referred to, the beneficiaries of private apparitions have suffered with patience the tests, often illegal, that authorities have made them suffer. For example, the current Archbishop of Lipa considers that the suffering and humiliation which the visionary experienced confer a solid credibility to her visions and to her statements. The Virgin had warned the young Carmelite, « You are going to suffer, they will scoff at you, but don’t be afraid, because your faith will lead you to heaven.”

 

Let us conclude by citing the case of Jeanne-Louise Ramonet in Brittany:

Jeanne-Louise Ramonet, a peasant of Plounévez-Lochrist in Brittany, claimed that the Virgin Mary and Christ appeared to her between 1938 and 1968, in a place called Kérizinen in Nord-Finistère. Since then, the Rosary is recited each day and many pilgrims come to ask Our Lady of the Holy Rosary to intercede for the healing of minds and bodies. Yet, the magnificent private sanctuary built at this location on 17 September 1978 is still not allowed to house the Real Presence of Christ, despite more than thirty years of prayers on the part of thousands of pilgrims[49], and a botched canonical investigation[50].

Teresita Castillo, Lipa (1927-)  

Mother Eugenia Ravasio,

France, Italy

 

Madeleine Aumont, Dozulé

(1925-2016)

Let us now consider the sanctions applied to the ecclesiastical authorities close to the seers.

1.3.2. Sanctions against Parish Priests and Religious Favorable to the Apparitions

The easiest disciplinary measure for a bishop to take, when he is confronted with a case of private revelation, is to transfer the priest who supports the beneficiaries of an alleged apparition, as well as any religious who accompany them.

As we have seen, the revocation of a pastoral assignment is governed by canon 184 §1, while the procedure is outlined in canons 1740[51], 1741 and 1742 when it comes to a parish priest. It begins with a request for the priest’s resignation, theoretically preceded by a phase of discussion with two other priests, justified and in writing. The first ground for transferring a parish priest mentioned by the canon 1741 is « a manner of acting which brings grave detriment or disturbance to ecclesiastical communion.”

In practice, when a group of the faithful believes in a private revelation, or at least in an alleged revelation, it generally leads to division between the group of pilgrims who believe in it, and the group of parishioners who do not. Even when the two groups remain cautious, awaiting the discernment of the bishop, it is likely that this will cause division and, regardless of the attitude of the priest, he can be held responsible for it, resulting de facto in a reason for his transfer. Yet, it is normal that such disorder is produced in the life of the Church as soon as the Holy Spirit intervenes: « My thoughts are not your thoughts » (Isaiah, 55, 9), said the Lord; while Jesus, the Prince of Peace, has confirmed:

Do not think that I have come to bring peace upon the earth. I have come to bring not peace but the sword. For I have come to set a man ‘against his father, a daughter against her mother, and a daughter-in-law against her mother-in-law; and one’s enemies will be those of his household.” (Matthew 10, 34-36).

In this regard, here are a few of the sanctions applied on a regular basis to the parish priests and religious who attend places of alleged revelations which are private and unrecognized, and/or support those who attend them:

  • Prohibition on visiting the place, as is the case at Kérizinen[52] or at Lipa[53],
  • Transfers of parish priests[54], of religious[55] and of bishops[56];
  • Expulsions of religious[57];
  • Interdicts (c. 1332) and suspensions (c. 1333), or even the threat of excommunication[58];
  • Denunciation or neutrality in the face of secular authorities[59].

In France, Mgr. René Laurentin, whom we have met before he died on 10 September 2017, devoted his doctoral thesis in theology to the priesthood of the Virgin, and throughout his life he studied private revelations. The following are excerpts from his memoirs:

I agreed to enter the dark domain [of apparitions] at the request of the authorities of the Church, including Cardinal Seper, the predecessor of Cardinal Ratzinger, who consulted me before establishing his standards for apparitions (1978). But the authority that has been attached to my name in the matter has hampered me: too many people have used it in an inappropriate way, as if dialogue or an investigation amounted to authentication. […] The result will see my slow descent into hell, but without drama or splendor, because I have limited the damage without throwing myself at anybody, and being obedient to the established order. Thus I have lost, in silence, a good part of the freedom that I had appreciated in the Church, up to the age of eighty, and verified the prediction of Jesus to his disciple Peter: « When you were younger, you used to dress yourself…” (Jn 21, 18). Any notoriety makes its beneficiary a man worth beating up, and my dual concern to clarify outstanding issues, and to rehabilitate reputations that had been defamed, considerably aggravated my case. […] Certainly, the repressions are less stringent and enigmatic than they were in the days of Father Congar, but the various methods are analogous to minimize freedoms that are human, Christian, priestly, related to the media, academic or of another type, which interfere with ongoing actions to hide official secrets. [60]

 

1.3.3. Sanctions on Pilgrims

Another sanction, or at least a « disciplinary measure » that Philippe Greiner cited regarding bad-faith proselytism is the suppression of an association. He himself cited for example the May 4, 1987 suppression of the public association « Ark of Mary » by the Cardinal Archbishop of Quebec, although it had been erected by his predecessor in 1975[61].

Other types of sanctions are commonly applied, including:

  • Prohibiting the building of a sanctuary, even a private one, or the authorization of the celebration of worship[62];
  • Prohibiting pilgrims from visiting the sites of alleged revelations[63];
  • Prohibiting them from speaking and testifying, as for example in Dozulé [64];
  • Prohibiting the publication of books[65];
  • Prohibiting particular clothing, as in Businde;
  • Attacking the reputations of pilgrims, considered credulous as in Dozulé, or even as enemies of the Church[66];
  • Abandonment to the secular authorities[67].

There may be a question of the legality of these decisions, and of their character as administrative act that would permit filing a recourse.

 

1.4. The Path of Recourse and Justice

Chapters 4 to 6 present a wide panorama of hierarchical and contentious-administrative recourses covering all of canon law, but we have not met any relating to disputes about private revelations. Is that to say that the administrative justice of the Church is not applicable in this area, that the intervention of justice is unknown because it is kept secret, or are there reasons why the Catholic faithful who have been the victims of administrative decisions do not make recourse?

We have seen that Mgr. Laurentin has been a witness to what he called the « various methods » of the ecclesiastical hierarchy to stifle some private revelations. In his memoirs, he specified that private revelations of a public nature inevitably confer a certain notoriety on their authors, making them « men to shoot down.” In the face of these attitudes of the hierarchy, he himself chose the path of silence and submission which preserves for him a minimum of freedom to write, sacrificing all the rest. With this choice, he could have become complicit in violations of the rights of the faithful by ecclesiastical authority. He suggested that he had used the paths of diplomacy and mediation to support discreetly some « seers,” but he clearly did not use the legal path. The reason for this choice may be related to his decision to not make recourse in order not to poison the situations, or to an inability to act effectively regarding « official secrets,” which, according to him, constitute a « shelter » against contentious-administrative recourse? We do not know.

 

 

In the case of Garabandal[68], the Bishop of Santander continued to apply in 1968 canon 1399 of the Code of 1917 even though this canon had been abrogated. The parishioners made no recourse, probably because they were unaware of their rights[69].

In the case of Kérizinen, ex gratia recourses have been filed regularly by the Association of Friends of Kérizinen with the Local Ordinary, with results more or less positive with regard to the personality of successive bishops. The Association has always sought to maintain dialogue, renouncing blind submission and the way of contention. This sometimes results in a degree of openness:

You will find attached a note […] which […] takes note of the positive, and indicates at the same time the steps which will still have to be overcome. […] It is absolutely necessary to indicate clearly [in the brochure]  that Jeanne-Louise said that she had had, between 1938 and 1965, more than 70 apparitions of the Virgin Mary and/or of the Lord Jesus, and received, during the course of these apparitions, messages that she transcribed in his notebooks; and that these apparitions and messages have never been recognized as having a supernatural origin …[70]

In the case of Zebiya in Burundi, a reference to canonical justice should be noted on the part of the Ordinary of Ngozi, in a letter of 2 April 2013 to the lawyer Segatwa Fabien, calling on him to get the followers of Zebiya out of jail:

… In case it seems to you that the bishop of Ngozi has violated a canonical law in the provisions taken to ask the faithful who are entrusted to his care to behave as Catholic Christians, be aware that he would like to better respond before the church courts competent in this field…

One can ask if the prospect of appeal raised by the bishop is credible, as the lawyer Segatwa had no administrative act in writing from the bishop that he could have challenged, nor canonical skills which would have allowed him to bring the case before the Council of the Laity, with obligatory transfer to the Apostolic Signatura. It seems that the practical impossibility, for Zebiya and her friends, of a healthy dialogue with both the priest and the bishop, was one of the sources of the violence which was triggered. As for Father Hermann, he preferred flight, rather than recourse.

A certain dialogue has existed in other places like Dozulé, where a resident filed an ex gratia recourse to the Bishop of Bayeux-Lisieux, after having received the 2 March 2006 letter below:

My predecessor, Monseigneur Badré, in December 1985, and I myself, on various occasions and especially in Lourdes, in September 1989, the Cardinal Ratzinger, currently Pope under the name of Benedict XVI, in October 1985, we all had prohibited: any publication of books, brochures, cassettes. And any dissemination and gathering of funds in view of the construction of a sanctuary or of a gigantic cross of 738 meters. Any travel whatsoever to Dozulé. It is pointless to gather on this alleged hill of prodigies. We cannot declare the apparitions of Dozulé authentic. Therefore, dear Madam, you must comply with the decisions of the Church[71].

This letter could have been the object of disputes[72], but the recipient did not file either hierarchical or contentious recourse. The attitude of respectful dialogue has produced very little fruit, since Sunday 29 May 2011, in the presence of the bishop and of a crowd of faithful, the parish priest of Dozulé imposed his hands on the head of a parishioner and uttered these words:

Madam M., on behalf of the Church, I appoint you the one responsible for the reception of pilgrims on the hill of Dozulé. In difficulties I will be there to help you[73].

Since the publication of the first edition of this book, on 3 January 2017, a reliable source has said that some of the pilgrims of Dozulé were informed that the local bishop had undertaken further canonical investigation into the alleged apparitions of Dozulé, but that the Congregation for the Doctrine of the Faith had asked him to stop the investigation before its completion, which he did. The faithful of the place remain perplexed by this situation that appears improbable, since it is contrary to the recommendations of the same congregation.

This situation, however, presents some similarities with the recent developments in Lipa in the Philippines. After having conducted a thorough investigation, the Bishop of Lipa has recognized the revelations as supernatural, indicating the « doubtful » character of the decree of prohibition of 1951[74]. Here too, the Congregation for the Doctrine of the Faith intervened by revealing a document kept secret for more than fifty years, in which Pope Pius XI would have validated in forma specifica the investigation strongly tainted with illegality, concluding the non-supernatural character of the apparitions and of the rain of rose petals[75]. While announcing the decree of the Congregation for the Doctrine of the Faith rescinding its own decree[76], Mgr Argüelles stated that he would not appeal this decision. Without knowing the reasons, it should be noted that Bishop Argüelles was invited to resign his office of Bishop of Lipa on February 2, 2017, two years before he reached the age limit, and a new bishop was appointed in his place immediately.

A prominent doctor in canon law criticized the choice of the author to mention the private revelations in this book:

I was surprised to read for example the passage (with photo!), where you mentioned the pseudo-revelations of Dozulé or other places… Be careful not to fall to an incongruous journalistic level, in a book which is considered more serious[77].

Conversely, a member of the Catholic faithful wrote:

I have read the 2017 book by Yves-Alain and you have not written for nothing. The passages on the period 1022 to 1307 in particular are remarkable and for me very meaningful (Cathar period, Templars and Hospitallers…). The same with regard to private revelations, which I have experienced, and of which I continue to collect very startling testimony which is entrusted to me so that I can do research, to the thread of improbable meetings […] Chapter 7 renders justice[78].

Finally, it seems to us important to maintain the sensitive subject, because we have seen that alleged revelations have prompted many individual administrative acts, relating rightly or wrongly to infringement on the rights of the Catholic faithful. In addition, it seems to us that, if a presumed revelation does not qualify publicly as a supernatural revelation, it should not be characterized as a “pseudo-apparition,” since the Ordinary has not yet made an official pronouncement in view of the in-depth investigation requested by the Congregation for the Doctrine of the Faith.

Taking these elements into account, a survey of associations of the pilgrims to several places of non-recognized apparitions has allowed us to understand why their members do not resort to ecclesiastical justice, inasmuch as they have the conviction of a deep injustice with respect to the seer and the messages:

  • The ecclesiastical hierarchy is particularly sensitive to alleged revelations which could be a source of division in the ecclesial communion;
  • The persons concerned are connected to the Church, and do not want to break a dialogue with their bishop, no matter how difficult and tenuous it may be;
  • No associations of pilgrims had received the legal personality that would allow them to act;
  • Their members do not have adequate knowledge in the field of canon law to assert their rights, and the priests who could dispense this knowledge are subject to the prohibition to attend the places concerned;
  • The decisions of the bishop are not clearly administrative acts subject to recourse;
  • All the decisions of the Congregation for the Doctrine of the Faith are communicated to the local bishop, and are therefore not contestable by the Catholic faithful concerned. In addition, these are sometimes approved by the Pope in forma specifica, thus giving them a definitive character,
  • The documents of the report, and in particular the canonical investigation, are not disclosed, and thus it is not possible to contest them.

We have nonetheless found an exception, with a contentious recourse filed with the Supreme Tribunal for an issue related to a private revelation[79].

On 10 March, 1975, the association « The Army of Mary » was canonically erected by the Archbishop of Quebec, according to the 1917 Code. Subsequently, it appears that the association was in the sphere of influence of the community of “Our Lady of All Peoples,” which is based on the mystical life of its foundress and on messages that she received between 1940 and 1959. Yet devotion to Mary the Mother of All Peoples was condemned under Pius XII. Also, the Cardinal Archbishop of Quebec asked the association to stop « embarking on tracks that are dangerous and not completely Orthodox,” after which he obtained the following opinion of the Congregation for the Doctrine of the Faith: « After having studied the writings disseminated by the Army of Mary, this Congregation […] approves and confirms these warnings, leaving you with the latitude to take all measures that you deem to be necessary, without excluding the possibility of suppressing the association ad normam iuris.” By decree of 4 May 1987, the Archbishop then removed the recognition of the association. The decree was the object of hierarchical, and then contentious-administrative recourse, but it was not admitted to discussion due to the obvious lack of foundation, in accordance with the decisions of the Congress on 17 March 1989 and 1 March 1990, and of the College on 20 April 1991.

 

It will be noted that the decision of the Tribunal does not address the merits of the position of the Congregation for the Doctrine of the Faith, which is not regarded as an administrative decree; but rather the decree of suppression of the association, validated by the Pontifical Council for the Laity, based on the position of the Congregation.

The bishop’s decision regarding the Army of Mary leads us to look more closely at a second, related subject, namely, that of new religious movements and alleged sects.

 

  1. New Religious Movements and Alleged Sects

From the dawn of Christianity, Christians were, quite rightly, considered a sect, since the word “sect” comes from the Latin verb sequor, sequeris, which means “to follow,” and Christians followed Jesus Christ. In the 21st century, the understanding of the word “sect” has evolved, with different meanings in the civilian and religious worlds[80]. It has become a hot topic in France, like other countries, because of current civil and religious events.

On 12 June 2001, France passed a law « to strengthen the prevention and the suppression of sectarian movements » […] This law was immediately attacked by the Jehovah’s Witnesses before the European Court of Human Rights; but their appeal was dismissed on 6 November 2001. […] It is primarily within Catholicism that this notion of sect presents a pejorative connotation: the 1917 Code also defined negatively all the groupings that it considered schismatic or hostile, « Catholic” sects, “Masonic” sects, etc. The other major religions have a more positive or at least more neutral attitude vis-à-vis minority groups or « new religious movements,” even if they surprise or disturb the established religious order[81].

On 29 April 2016 in Dijon, at the conference of the secular world entitled The “Anti-sect » Battle: Assessment and Prospects[82], Thierry Bécourt confirms its intentions for 2002:

It is obvious that a current of intolerance runs across France and is being propagated in Europe. It reminds us of darker periods in our history. The spectre of Vichy threatens us… This nationalized intolerance that we live today in our country which says « rights of Man,” marks the beginning of a real loss of freedom, the freedom of thought… which, if we lose our vigilance, will open the door to totalitarianism[83].

Despite the subjective and therefore biased nature of these words, it is interesting to see how the Church behaves, and its justice in what Thierry Bécourt called « a new witch hunt.”

2.1. The Applicable Law

In canon law, the 1917 Code several times cited persons who gave their support, or who publicly joined a heretical or schismatic sect or the Masonic sect, or to societies of the same type[84], in forbidding them to participate in voting (canon 167), to be admitted to the novitiate (canon 542), to belong to an association (canon 693), to be godparents (canon 765), to marry in a religious ceremony (canon 1060), or to have a Christian burial (canon 1240). They were obliged to be declared “notorious,” and be excommunicated (canons 1214 §1[85] and 2335). Likewise forbidden were books dealing with Masonic sects and other societies of the same kind, which argue that they are useful and not harmful to the Church and civil society (canon 1399).

Currently, the 1983 Code partially contains these canons[86], without using the word “sect,” but preserving the word “heresy,” aware that belonging to an atheist sect is comparable to heresy[87]. In addition to the Code, various pronouncements specify the position of the Magisterium.

In 1981, the Permanent Council of the Church of France created the group « Pastoral and Sects« , led by Jean Vernette[88].

On 3 May 1986, the Roman Curia published a document entitled « The Phenomenon of Sects or New Religious Movements: A Pastoral Challenge.” Taking into account the ecumenical and interreligious-dialogue approach, Philippe the Vallois distinguishes three cases:

  • Sects of Christian origin, namely groups that add to the Bible other books and other prophetic messages;
  • Religious groups with a vision of the world that is distinctly their own, deriving from the teachings of one of the major religions of the world;
  • Certain groups that are normally seen as a threat to personal freedom and to society in general.

On 5 April 1991, the fourth plenary meeting of the Consistory of Cardinals had for its theme « Sects or New Religious Movements,” in the five continents. Cardinal Arinze, then President of the Pontifical Council for Interreligious Dialogue, set out « the challenge of sects or new religious movements, a pastoral approach[89] » replacing the term « sect, » which was considered to have too many negative meanings, with the expression « new religious movements, » better adapted to cover new movements of protestant origin, sectarian groups which have Christian roots, new movements in Asian or African countries, and those of Gnostic or esoteric types. He called bishops to discernment, judging some of their reactions on the ground to have been excessive, and asked them to put aside condemnation, discrimination, and generalizations that apply to all new religious movements the negative aspects of a few.

On 15 November 1991, the Conference of the Bishops of France published « The Catholic Churches, the Sects and New Religious Movements in France[90].

In 1996, Mgr. Jean Vernette criticized in the name of human rights the report on sects adopted on 22 December 1995 by the National Assembly’s Commission on Sects[91], published on 10 January 1996, which establishes a list of 173 « sectarian movements » based on secret works of general information and according to criteria which, in his opinion, can be applied to almost all established religions[92].

In 1997, Opus Dei reacted against a report on sects by Belgian Parliamentarians, which portrayed them as similar to this category, accusing them of  » a fundamentalist and elitist Catholicism.”

In 2013, Yves Hamant, President of Istina, as well as other persons, addressed to the Bishops of France « a vigorous appeal to denounce practices of sectarian leanings within the institutions of the Church.” The President of the Conference of the Bishops of France responded in these terms on 7 November:

We have received this as the cry of people suffering within the heart of the Church because of what they have experienced personally or their relatives have experienced or still experience. We think of those who are injured, sometimes in the long term, by the behavior of some members of the Church. As the President of our Conference, I would like in the name of all of us to tell you say that these practices dismay and shock us. To assure you of our prayers for them is not enough; we want to bear with them their suffering, to assure them of our compassion, to help them in their reconstruction[93].

The result was the establishment of a cell for the sectarian drifts in Catholic communities within the Conference of the Bishops of France[94], as well as the publication in September 2014 of a list of criteria for the discernment of identifying behaviors of sects[95]. Nothing was said, however, about the procedure to follow in the case of a presumed sectarian drift, and, in particular, about the protection of rights of the Catholic faithful who are members of the communities in question.

2.2. Difficulties and Sanctions

In a struggle characterized by secretly informing, exclusion and fear which evokes dark periods of history, three distinct types of difficulties appear:

  • Violations of the rights of victims of deviant processes within the Church;
  • The combining of deviant groups and religious groups, causing exclusions and sanctions against the members of these groups;
  • The connivance of certain Catholic priests with the French State and with the Masonic lodges, which have sometimes taken advantage of the fear of sects to carry out an attack against religion.

Nobody is effectively immune from the phenomena of exclusion, resulting from a stigmatizing of deviant groups, as Pope Benedict XVI himself testified, four years before his resignation:

At times one gets the impression that our society needs to have at least one group to which no tolerance may be shown; which one can easily attack and hate. And should someone dare to approach them – in this case the Pope – he too loses any right to tolerance; he too can be treated hatefully, without misgiving or restraint[96].

Opus Dei learned this at its own expense, when Monsignor Jacques Trouslard, honorary canon, charged by the French church to the documentation on the sects, identified in them ten characteristics of sects[97]. He was rewarded by the French State with the high distinction of Knight of the Legion of Honor[98].

 

Some French bishops have been recipients of reports of general information which are at the origin of the 1995 parliamentary report on sects, or of anti-sect groups such as UNADFI, largely subsidized by the French Government. Sometimes, on the pretext of this unverified information, they deny rights to members of movements considered to be sects, or attack their reputations without allowing them the right to self-defense.

By adopting the form of an open letter, the President of the French Bishops’ Conference made problem public, leaving it to the press to comment on his remarks. The press did not fail to do so, by citing possible « spiritual abuse » on the part of the Béatitudes, the Legionaries of Christ, the Point-Coeurs, the Community of Saint John… Contrary to canonical procedures protecting the reputation of the parties, it is to be feared that

They single them out in the media, often doing irreparable damage to the reputations of innocent people.[99]

2.3. Possible Recourses

It happens that some members of groups designated as sects make contentious-administrative recourse against the position taken by administrative authority. After the recourses of members of the « Army of Mary » and of the association « Call to Action Nebraska,” here is a third example:

A member of a private association of the faithful that is the subject of a warning displayed in a monastery complained of damage to its reputation, because of a letter from ecclesiastical authority addressed to a person who had requested information on this association. The Supreme Tribunal did not accept the recourse to discussion, stating « that it has not been demonstrated that the disputed response-letter is an administrative act, because the hierarchy responded only to a woman who asked about this associations’ connection to the Church, noting the report of a French Senator and other internet sources[100].

 

In the face of this situation, a canonist can only speculate on the merits of the sources that the hierarchy uses, citing the parliamentary report on sects brought by well known Freemasons and the site www,sos-dérive-sectaire.fr, which refers explicitly to « the accuser of one’s brethren » as the webmaster of the site calls himself phonetically[101].

One also wonders about the credibility of the advisers chosen by the French episcopate, namely Mgr. Trouslard who claimed to be « obsessed by sects[102],” and Mgr. Vernette, who has contracted a marriage[103]. One finally has to deplore the fact that none of the three appeals filed which have come to our knowledge has been admitted to the discussion, which could reveal a problem that is structural, and not merely circumstantial.

 

As for the response of the President of the French Bishops’ Conference on sectarian tendencies within the Church, it is perhaps surprising that it sends the victims to the justice of the French State, without mentioning any of the canonical procedures in force within the Church.

We want to tell you forcefully that we wish to continue to act so that situations are clarified, so that truth may appear when necessary, and so that those who have been victims of deviant processes might find among the bishops an attentive ear and understanding. […] Some behaviors that you denounce fall within the criminal justice system. No one is above the law. The victims have the prerogative, if they wish, to lodge a complaint before the courts when this happens [104].

In failing to cite the ecclesiastical administrative justice, it seems that the Bishops of France consider that it does not play a role in identifying, limiting and resolving difficulties related to presumed sectarian tendencies within the Church. Without doubt this is it due in part to the lack of effect of organizations of dialogue, such as diocesan mediation committees, which Pope Francis however seems to value in his exhortation Evangelii Gaudium:

In its mission to foster a communion that is dynamic, open and missionary, he [the Bishop] should stimulate and search for the maturation of the organizations of participation proposed by the Code of Canon Law and other forms of pastoral dialogue, with the desire to listen to the whole world, and not just the few who are always quick to pay him compliments.

In conclusion, let us reflect upon these words of Pope Francis, applying them to the ecclesial communities rejected by the hierarchy:

A Church without martyrs… is a church without Jesus […]the greatest strength of the Church today is in the small churches, small, small, … persecuted[105].

 

 

 

 

 

 

Mother Eugenia

[1] The competent Congregation in matters of private revelations is the Congregation for the Doctrine of the Faith. However, the database of publications mentioned in Chapter 3, reports only four recourses relating to decrees emanating from this Congregation, of about 2,000 publications relating to contentious recourses. In addition, none of the cases identified makes explicit reference to a private revelation. Certainly, it is possible that jurisprudence exists for the transfer of parish priests or the suppression of an association, which constitutes one of the disciplinary measures imposed by the bishop in cases of presumed apparitions, but in this case, jurisprudence is very abundant and reference to the private revelation is not indicated in the subject of the recourse.

[2] Cf. Ratzinger, (Cardinal Joseph), theological places of private revelations, Comment on the Third Secret of Fatima, 13 May 2000. He distinguished between the time of the revelation, termed “public,” in opposition to « private revelations, » knowing that between these two realities, there is a difference not only in degree but in nature.

[3] We think, for example, of Saint Augustine, Saint Martin, Saint Joan of Arc, Saint Gertrude, Saint Francis of Assisi, St Francis de Sales, Saint Jeanne de Chantal, St Teresa of Avila, Saint Catherine Laboré, Saint John of the Cross, Saint Bernadette of Lourdes and the children of Fatima, Sister Faustina, Padre Pio…

[4] Bertone, (card. Tarcisio sdb), Archbishop Emeritus of Vercelli, Secretary of the Congregation for the Doctrine of the Faith, « The message of Fatima” Fatima 13 May 2000

[5] Lebry (Léon Francis), Jean-Pierre Kutwa, miraculé et cardinal, Abidjan NEI-CEDA, 2015, 262 p.

[6] Congregation for the Doctrine of the Faith, letter of 15 May 2016, on the occasion of the Feast of Pentecost 2016.

[7] The www.miraclehunter.com website was developed by « Miracle Hunter » Michael O’Neill, a graduate of Stanford University, and a member of the Mariological Society of America. Cardinal Seán O’Malley, Archbishop of Boston, MA. commented, « Thank you for sending me your site. It is excellent. »

[8] He identified more than 1 000 miracles, or at least alleged miracles, consisting of miraculous images, stigmata, incorrupt dead bodies, Eucharistic miracles and apparitions.

[9] This increase may reflect an increase in their real number, but it may also be the result of a better knowledge of apparitions due to greater media coverage.

[10] Mons. René Laurentin, prelate of His Holiness, is dead on Sunday 10 Septembre 2017, when getting quite 100 years old.

[11] Laurentin (Père René) « Multiplication des apparitions de la Vierge aujourd’hui » (Fayard 1995). The abrogation took place by Blessed Pope Paul VI, on 14 Octobre 1966 (Congregation for the Doctrine of the Faith, Acta Apostolicae Sedis, 29 Decembre 1966, p. 1186)

[12] Guadalupe (Mexique, 1531), Aparecida (Brésil, 1717), Rome (à Alphonse Ratisbonne en 1842), La Salette (France, 1846), Lourdes (France, 1858), Pontmain (France, 1871), Giertzwald (Pologne, 1877), Fatima (Portugal, 1917), Beauraing (Belgique, 1932), Banneux (Belgique, 1933), Amsterdam (Pays-Bas, 1945), Betania (Venezuela, 1976), Akita (Japon, 1973), Kibeho (Rwanda, 1981), Le Laus (France, 1664) et Champion (États-Unis, 1859).

[13] Laurentin, (Mgr. René), Mémoires. Chemin vers la lumière, Paris, 2005, Fayard, p. 332/624.

[14] Barbu, (Mgr. Francis), « Que penser de Kerizinen ? Une réponse de Rome, la position de l’Evêque diocésain », Quimper, June-July 1975, drawn from the archives of the Association of Friends of Kérizinen.

[15] Catechism of the Catholic Church, No. 66 and 67.

[16] Cantalamessa (Père Raniero)  www.totus-tuus.fr/article-2220137.html

[17] AAS 58/16.

[18] Can. 2318 : § 1 In the excommunications especially reserved to the Apostolic See, after the publication of the book, the publishers of books of apostates, of heretics and schismatics, which support apostasy, heresy or schism. The same punishment for those who defend these books or other works specifically condemned by apostolic letters, or knowingly the read or retain them without the required permission. § 2 The authors and publishers who print, without the required permission, books of Sacred Scripture, or notes and comments on these books, incur by that fact an excommunication which is not reserved.

[19] Ottaviani (Cardinal). The excerpt of the decree of the Congregation, translated by the author from the English version downloaded on 20 May 2016 from www.lovingmother.org/misc/canonsofthechurcheng.htm
Canon 1399 : forbade, by right of publication, certain books such as those that deal with revelations, visions, prophecies and miracles.  This canon was repealed on March 29, 1967.  This means that as far as these publications are concerned, prohibition is lifted as to their being bound by ecclesiastical law and henceforth, Catholics are permitted, without need of imprimatur, nihil obstat, or any other permission, to publish accounts of revelations, visions, prophecies and miracles.  Of course, these publications must not put in danger the faith or morals. This is the general rule, which every Catholic must follow in all his actions, even journalists, especially journalists. There is henceforth no longer any prohibition concerning the narrative of seers, be they recognized or not by ecclesiastical authority. All the more reason is it permitted for Catholics to frequent places of apparitions, even those not recognized by Ordinaries of their dioceses or by the holy Father, granted that the Catholic visitors who frequent these places must respect the faith and morals. However, they are not subject to any ecclesiastical discipline, not even for their public prayers. Permission is required only for the celebration of Holy Mass or any other religious service.

Canon 2318 : carried penalties against those who violated the laws of censure and prohibition.  This canon has been abrogated [revoked] since 1966.  Non can incur ecclesiastical censure for frequenting places of apparitions, even those not recognized by the Ordinaries of their dioceses or by the Holy Father.  Also, “those who would have incurred the censured treatment in Canon 2318 will be likewise absolved by the very facts of the abrogation [revocation] of this Canon.”

[20] www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_
doc_19780225
_norme-apparizioni_en.html

[21]The criteria have been kept secret for 37 years, and then made public after informal versions circulated everywhere in the world. In fact, the publication of the procedural standards is not only useful to pastors, who were already informed, but also and especially to the faithful who may inform themselves of the laws which apply to them and, therefore, seek to discern the alleged revelations and perform the recourse that they consider timely, in cases where they would feel aggrieved by administrative decisions considered to be illegitimate.

[22] www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_
doc_20111214_prefazione-levada_en.html

[23]A) Positive Criteria:

  1. a) Moral certitude, or at least great probability of the existence of the fact, acquired by means of a serious investigation;
  2. b) Particular circumstances relative to the existence and to the nature of the fact, that is to say:
  3. Personal qualities of the subject or of the subjects (in particular, psychological equilibrium, honesty and rectitude of moral life, sincerity and habitual docility towards Ecclesiastical Authority, the capacity to return to a normal regimen of a life of faith, etc.);
  4. As regards revelation: true theological and spiritual doctrine and immune from error;
  5. Healthy devotion and abundant and constant spiritual fruit (for example, spirit of prayer, conversion, testimonies of charity, etc.).
  6. B) Negative Criteria:
  7. a) Manifest error concerning the fact.
  8. b) Doctrinal errors attributed to God himself, or to the Blessed Virgin Mary, or to some saint in their manifestations, taking into account however the possibility that the subject might have added, even unconsciously, purely human elements or some error of the natural order to an authentic supernatural revelation (cf. Saint Ignatius, Exercises, no. 336).
  9. c) Evidence of a search for profit or gain strictly connected to the fact.
  10. d) Gravely immoral acts committed by the subject or his or her followers when the fact occurred or in connection with it.
  11. e) Psychological disorder or psychopathic tendencies in the subject, that with certainty influenced on the presumed supernatural fact, or psychosis, collective hysteria or other things of this kind.

It is to be noted that these criteria, be they positive or negative, are not peremptory but rather indicative, and they should be applied cumulatively or with some mutual convergence.

[24] Lesserteur (R.P.), Already for a long time, the Holy Office had recognized that there was nothing wrong with the apparitions of Tilly, and the Pontiff, who had himself read with great emotion the journal of the religious of the school, had given the order to complete the information and make a decision. Mgr. Amette [Cardinal of Paris] objected, rushed to Rome, and argued for reasons of expediency, to postpone the proclamation of a favorable decision. […] In the first months of last year (1908), Pius X ordered again the case to be resumed. Mgr. Amette ran again. […] The pope would then have  let himself be persuaded, and would have ordered to wait. Pierre-Marie GRÜNNEISSEN, Présence mariale à Tilly sur Seulles, ed. Les Amis de Tilly (1996), p. 104-105.

[25] www.lesamisdegarabandal.com/l’eglise%20et%20garabandal.html

[26] Fauvel (Mgr. André) « We had in addition prohibited all priests and to go to Kérizinen or to advise it to anybody. Learning that the faithful continue to go there, we formally prohibit any form of devotion and worship at Kérizinen. » Translated from La semaine religieuse de Quimper, 24 March 1961.

[27] www.rosamisticafontanelle.it

[28] Curty (Père Christian) : Has the canonical investigation of your predecessor been conducted according to all of the legal standards required by law? Has each of the witnesses really and separately been interrogated? From the moment that it was maintained that there is no supernatural dimension, what explanation has been found about the 120 Latin quotations of scriptural or liturgical origin, that clearly Madeleine was not able to improvise or tap into the subconscious part of her memory, and that she could not be under the influence of her parish priest, also outdone by the facts? Have the ‘Fruits’ of this tree really been studied: the healings deemed complete and definitively recognized as ‘inexplicable’ by medicine, conversions that are profound and sometimes surprising and long-lasting, either obtained spontaneously on the Butte, on the occasion of a pilgrimage, or indirectly connected to the facts of Dozulé? Is there interest in the fact that many vocations (seminarians, consecrated religious) have recognized at Dozulé their point of departure and of awakening? Such are some of the many questions, which have not yet received a response and which have puzzled many of our Christian brothers engaged in pastoral care, whereas the Second Vatican Council asked them to overcome the passive obedience to which they were accustomed, in order to exercise an obedience now active and intelligent, and therefore informed and motivated. Translated from www.ressource.fr/devoilement/esprit_saint_devoile/E(-217).pdf

[29] The message was rejected by the bishop under the pretext that the alleged request of Jesus to Madeleine Aumont, « Tell the Church to raise a cross [738 m] and at its feet, a sanctuary » seemed impossible to him. Yet a comprehensive study proving its feasibility was presented to local elected officials on 8 January 1997, and since then, a tower 828 m tall was erected in Dubai in 2010.

[30] Ladaria (Luis), Archevêque de titulaire de Thibica, Secrétaire de la Congrégation pour la Doctrine de la Foi, Prot 19/1984-36132, 25 juillet 2011.

[31] Argüelles (Mgr Ramón Cabrera) : extracts from the decree of recognition of 9 December 2015; English text drawn from www.splendorofthechurch.com.ph/2015/09/13/Lipa-appearance-of-our-lady-officially-declared-authentic-by-Archbishop-Arguelles/  and from   http://fr.aleteia.org/2015/09/28/je-suis-marie-mediatrice-de-toutes-graces/  on 20 May 2016.

[32] www.marianmessenger.ph/index.php/maian-feature

[33] Ouellet (Cardinal Marc), presentation of the document of the Congregation for the Doctrine of the Faith Iuvenescit https://fr.zenit.org/articles/importance-ecclesiale-des-charismes-par-le-card-ouellet/

[34] Congregation for the Doctrine of the Faith, letter of 15 May 2016. www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20160516_iuvenescit-ecclesia_en.html

[35] Congregation for the Doctrine of the Faith, « Norms regarding the manner of proceeding in the discernment of presumed apparitions or revelations » www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19780225_norme-apparizioni_en.html

[36] Greiner (Philippe), Dean of the Faculty of Canon Law of Paris, « l’encadrement juridique du prosélytisme, en droit grec, français, européen (1950) et en droit canonique catholique romain. » Thesis presented 19 February 2005, at the Catholic Institute of Paris, p. 455.

[37] In the Moorish language, the word “Bangtaba” means « Let’s sit down and get to know each other. »

[38] Although this is the same person, we will distinguish Sister Eugénia Ravasio during the period 1931-1935, from Mother Eugénia during the period 1935-1990 which concerns our study.

[39] This event transformed the private revelation from personal to public.

[40] The confinement of a believer in a psychiatric hospital because of his faith is not the prerogative of the Catholic Church. This was encountered frequently in the Soviet Union, and Canonists without Borders has received testimony from Muslim countries where followers of Islam are still interned when they begin to turn to another religion.

[41] The detractors of Mother Eugénia commenced a civil trial against her, and had her imprisoned in 1972, then had her condemned with a reprieve on appeal in 1977. She was mainly accused by her detractors of having created Catholic Unity in her own self-interest, and not to hoor God the Father through Jesus.

[42] “The danger, in both faith and worship, is to confuse the divine Persons, or to divide their unique nature; because the Catholic faith worships only one God in the Trinity and the Trinity in unity. Also, Innocent XII, our predecessor, refused absolutely, despite strong representations, to authorize a special feast in honor of the Father. If we celebrate in particular the mysteries of the incarnate Word, there is no feast honoring only the divine nature of the Word, and solemnities of Pentecost were themselves established from the earliest years, not in order to honor exclusively the Holy Spirit for Himself but to remind us of His descent, that is to say, his external mission.”

[43] Cf. https://en.wikipedia.org/wiki/Teresita_Castillo et www.marianmessenger.php  as well as the references they cite.

[44] A dozen media organizations recount the events. Among them several media organizations of Burundians, including Iwacu, the Africa Report, the bulletin of liaison and information of the Salesians of the Great Lakes, as well as those of the ministries of the Interior of Burundi and of the Canadian Department of Justice https://www.justice.gov/sites/default/files/
eoir/legacy/2014/09/04/BDI104471.E.pdf

[45] The Friends of Zébiya claim to be Christians like the others, prevented from praying as they wish. The State invites them to base their own church outside of the Catholic Church. The parish priest claims to have narrowly escaped physical violence. The Bishop feels that disobedience, arrogance, rebellion, lies, etc. characterize the group.

[46] NSENGIYUMVA (P. Rémy, SDB), Curé de la Paroisse, « L’attaque des adeptes de Mlle Eusebie NGENDAKUMANA à la paroisse de Rukago »  in  Bulletin de liaison et d’information pour la Quasi-Province salésienne de l’Afrique de Grands Lacs (AGL),  AGL News, Mars 2013, www.sdbagl.org/PDF/aglnewsmars03.pdf  consulted on May 5, 2016.

[47] Segatwa (avocat Fabien) : extract of a letter of 10 March 2013 to the bishop of Ngozi: « With their meager resources, they have built a modern orphanage which welcomed from the outset 50 young orphans. »

[48] The parish council of Rukago made the decision to prohibit access to the Church to any girl or woman wearing pieces of cloth on her head. The Ordinary has formally prohibited all worship at Businde and he asked Ms. Eusébie and « her followers » to stop any activity which is detrimental to the unity and communion of the Church.

[49] More than 12 000 people participated in the inauguration.

[50] The visionary was received for 45 minutes by the bishop on December 28, 1974, after a third interdict on his part on May 20, 1973 and before a fourth interdict on 12 July 1975.

[51] 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.

[52] On Friday, 12 October 1956, Monseigneur Fauvel, Bishop of Quimper and Léon, launched a first interdict on Kérizinen which was published in la Semaine Religieuse of Quimper: « Regarding the alleged apparitions of Kérizinen in Plounévez-Lochrist, we note the following points: 1.- the building that is there was built despite our express prohibition, expressed in writing and sent to the interested parties. No priest has received from us power to bless this building. 2.- We forbid all, priests and religious, to go to Kérizinen or to advise anyone to go there. (This note will be read from the pulpit next Sunday, 14 October, at all Masses in churches and chapels). To this interdict, the Association of Friends of Kérizinen responded that the prohibition was initiated without a canonical investigation and without warning and that, contrary to the assertion of the bishop, Jeanne-Louise has never received any express prohibition concerning the construction of a building but that on the contrary, she had received verbal authorization from the Vicar General to build an oratory on her property.

[53] A Lipa, Carmel has been quarantined with an interdict on any person to enter and on the Sisters to leave (except for taking courses).

 

[54] The abbot l’Horset, parish priest of Dozulé, was transferred when he wrote a book on this subject.

[55] At Lipa, the Mother Superior of the Carmel was transferred.

[56] At Lipa (Philippines), the two bishops of the place favorable to the events of 1948 were transferred to give place to a bishop who decreed in 1951 that the events were of a non-supernatural character. After their departure, there became known on 2 February 2017″ the « abdication » of Archbishop Ramon C. Argüelles, shortly after he recognized the supernatural character of the apparitions.

[57] Father Herman Harakandila was the superior of the Missionary Congregation of the Apostles of the Good Shepherd, erected in 1989 by Mgr. Ruhuna the Archbishop of Gitega, in Burundi, with the aim of encouraging priestly vocations and the mission, at the time when the Government of Burundi ousted huge numbers of foreign religious. Having supported the Marian apparition of « Our Lady the Queen of Africa,” he was forbidden to celebrate Mass, while the State put him in prison. According to a witness, the State would have proposed to let him out of jail, if he no longer promoted the apparition. He would have refused. Later the Bishops obtained his release, and sent a priest to him, before whom he finally signed a declaration by which he denied the apparition. Fifteen days later, he retracted this and disappeared into obscurity, and so his religious order had to obtain a decree of exclaustration. Following the disappearance of its two founders, Mgr. Ruhuna, who was murdered in 1996, and Father Herman, the new superior general of the young congregation made a call to Aid to the Church in Need to survive. Sources: White Fathers of Gitega, Church in Need, www.youtube.com/watch?v=sJ1ktdUzieA consulted on 21 September 2014.

[58] At Lipa, on his death bed, one of the bishops involved may have said that they had forced the members of the 1951 Commission to recognize the non-supernatural character of the apparitions, under threat of excommunication.

www.marianmessenger.ph/index.php/maian-feature

[59] In Italy, Mother Eugénia did not receive support from the Church when she was imprisoned by the Italian State, upon her denunciation, probably fallacious, by religious of the congregation that she had directed. In Burundi, Father Hermann was imprisoned by the civil authorities, and the Church obtained his release at the price of his renunciation of his faith in the apparitions of Businde.

[60] Laurentin (Mgr René), Mémoires, chemin vers la lumière, Paris 2005, Fayard, p. 351, 558, 559.

[61] Vachon (cardinal Louis-André), Decree of suppression of the public association « Ark of Mary » May 4, 1987 in La Documentation catholique, t. 84, No. 1946, 6-20 September 1987, p. 864.

[62] At Kerizinen, a letter of supplication of October 7, 1956 addressed to Monseigneur Fauvel, Bishop of Quimper and Léon and countersigned by 356 people, is kept in the archives (she asked for a Mass instead of the apparitions). It was not sent, because of the interdict which occurred 5 days later. http://kerizinen.free.fr/messagef2.htm

[63] On 24 March 1961, Monseigneur Fauvel, Bishop of Quimper and Léon, had printed in la Semaine Religieuse of Quimper a second prohibition on Kérizinen: « In a note published in la Semaine Religieuse of 12 October 1956, and read in all the churches and chapels of the Diocese The following Sunday 14 October, we specified that a building had been built in Kérizinen despite our express prohibition. We had, in addition, prohibited all priests and religious to go to Kérizinen or to encourage anyone else to go there. Learning that the faithful continue to go there, we formally prohibited any form of devotion and worship at Kérizinen. We hope that this prohibition will be observed and that we will not have to resort to more serious measures. » To this prohibition, the Association of Friends of Kérizinen replied that to their knowledge, the second interdict was imposed without canonical investigation and without warning.

[64] On March 28, 1975, after the celebration of the Passion at 10:30 PM, the priest recommended to the approximately 50 persons in attendance to be silent about what they had seen and heard and do not understand. www.ressource.fr/francais/messages/messages21a30.html

[65] Cf message de Bishop Pican, supra..

[66] The Bishop of Quimper and Léon published the 21 June 1975 decision of the Congregation for the Doctrine of the Faith that he commented on as well: « … the devotion maintained in this place and the cult that it wants to introduce are not in harmony with the Catholic faith, and must not be favored by the leaders of the Church. […] Those who propagate these messages and are working to promote a cult based on them are doing—perhaps in good faith, which is their excuse—a harmful work within the People of God. »

[67] In the Middle Ages, the Church delivered the « criminals of the faith » over to the secular power. Today, it is observed that the Church denounces to the secular power, or at least refrains from defending the Catholic faithful who were the beneficiaries of apparitions, such as Mrs. Madeleine Aumont, put under guardianship and placed against her will in a retirement home in Livarot.

[68] From 1961 to 1965, very many people have been witnesses to inexplicable events, which then have made the headlines and given rise to a commission of inquiry, […] « On 22 August 1961, the members of the Commission appointed by the Bishop arrived at Garabandal, with the mission to study these strange phenomena. They were two or three priests, a physician and a photographer. Their conduct during the course of this evening does not seem to be able to be cited as an example: with regard to the observation of the events themselves, their provisions of impartiality, the extent of their gestures and their discomfort. […] For this last [Conchita], began the same day [27 July 1961] the testing arranged by the members of the Commission, Dr. Don José Luis Pinal and the priest Francisco Odriozola. To the tests, which weree more or less mental or emotional, was added a change of scene: presence at the beach, at performances, entertainment, etc. […] With this intensive treatment of worldliness, they used during their interviews with the girl certain techniques: a mixture of flattery and threats, those who were acting on behalf of the Commission finally arrived at what apparently they wished for, to extract from Conchita « evidence » against the veracity of everything that had happened.  » (Cf. Eusebio GARCIA DE Pesquera, Garabandal, faits et dates, Résiac 2008, p. 31/152 p.)

[69]On 9 October 1968, the secretariat of the bishopric of Santander published a note in the Official Bulletin of the Diocese (Boletin O. del Obispado, noviembre 1968 p. 465.) about the alleged apparitions of Garabandal, recalling canon 1399 No. 5 of the 1917 Code of 1917, whereas this had been repealed. According to Father Eusebio GARCIA DE Pesquera, Garabandal, faits et dates, Résiac 2008, p. 103-104/152 p., « It was not a canonical condemnation, since no canonical trial, no study worthy of this name had preceded this note. » However, he recalled that « In Spain, at that time, the word of a bishop was regarded as indisputable.” (Cf. Eusebio GARCIA DE Pesquera, Garabandal, faits et dates, Résiac 2008, p. 103-104/152 p.)

[70] Guillon (Mgr. Clément), extracts from the letter and note of 16 November 2007 addressed to the President of the Association of Friends of Kérizinen. (Archives of the Association)

[71] www.ressource.fr/fdn/Dossier/Classeur2/BEElementsDeReponse_MgrPican_190306.htm

[72] N We have seen particularly that the imprimatur had been lifted for the publication of books relating to apparitions.

[73] http://apotres.amour.free.fr/page33/DOZULE.htm

[74] In 1951, no contentious-administrative recourse was possible, since the second section of the Supreme Tribunal was not yet created. Even if it had been created, contentious-administrative recourse would have been impossible to win, because evidence of a possible violation of the law was not known to the visionary or her friends.

[75] Cf. Zulueta, Lito (June 1, 2016). « Vatican overrules Batangas bishop; declared 1948 Marian apparitions not genuine.” The Philippine Daily Inquirer. Retrieved 6 June 2016. Eugenio, Damiana L. (1996). Philippine folk literature: The Legends. University of the Philippines. p. 109. ISBN 978-971-8729-05-2; « Vatican reverses ruling on Lipa Marian apparition.” GMA News. June 3, 2016. Retrieved June 6, 2016.

[76] Hoyeau (Céline), in La Croix urbi & orbi of 6 June 2016: It is this decree that the Congregation for the Doctrine of the Faith has called « null and void,” « In light of the fact that the 1951 Declaration was a decision confirmed by the Sovereign Pontiff and therefore final.” « The subject of the phenomenon of Lipa does not fall under the authority of the local diocesan bishop,” said the decree of the CDF.

[77] E-mail addressed to the author on 3 February 2017.

[78] E-mails addressed to the author on 4 and 6 Septembre 2017.

[79] Prot 18881/87/CA, Studia Canonica, 25 (1991), p 403-415.

[80] Védrine (Hubert) French Minister of Foreign Affairs, letter of 6 December 1999 to Mr. Albright, terminating the diplomatic dialogue of France with the United States on the theme of religious freedom, cited by Etienne OLLION, Raison d’Etat, histoire de la lutte contre les sectes en France, édition La découverte, 2017, April 2017, 360 p

[81] Werckmeister (Jean), « les sectes », in Revue de droit canonique, 51/1, 2001,
p. 3-4. « It is worth noting that in the same magazine (p. 44), Le Vallois (Philippe) is opposed to the appreciation of intolerance for only Catholics, in recalling how the Protestants are shown to have been intransigent vis-a-vis the Anabaptist sect.

[82] www.coordiap.com/press3012-conference-lutte-anti-sectes-bilan-et-perspectives.htm

[83] Bécourt (Thierry), La nouvelle chasse aux sorcières, Paris, Omnium éditions, 1992, 111 p.

[84] Before 1954, it was mainly the freemasons, Socialists, Old Catholics, communists, and of the school of the teaching of Jean Mace, then in 1954, two brother preachers clarified the context, namely H. CH. CHARY, L’offensive des sectes, Paris Cerf et M. B. Lavaud Sectes modernes et foi catholique, (Paris Aubier), by attracting the wrath of Protestant authors like Jean Seguy, Les sectes protestantes dans la France contemporaine, Paris 1956, Beauchesne & Fils.

Messner (Francis), Les Nouvelles religions, cours reprographié, Strasbourg, USHS, 1988, p. 33 cited by Le Vallois (Philippe) « Définition de la secte et attitudes envers les sectes dans l’Église catholique romaine »  in Revue de droit canonique, 51/1, 2001, p. 53-73.

[85] Can. 2314 § 1 All apostates of the Christian faith, all heretics or schismatics and each of them:

1° incur by the fact itself an excommunication;

2° if after a warning, they do not come to recant, they are to be deprived of any profit, dignity, pension, office or other charge, if they had these in the Church, and are to be declared infamous; after two warnings, those who are clerics must be removed.

3° if they have given their name to a non-Catholic sect or have publicly adhered to one, they are infamous by that very fact; taking into account the prescription of can. 188 n. 4, that clerics, after an inefficcious warning, are to be demoted.

[86] Cf. c. 316 for accession to a public association, c. 1041 for validly receiving the sacrament of orders, c. 1124 for marriage, c. 1184 for ecclesiastical funerals.

[87]Response of the CPI/17-67 of 30-07-1934 (AAS 26 [1934] 494; DC 32 [1934] col. 901-902).

[88] Vernette (Jean Maurice), born on 26 February 1929 in Port Vendres, ordained a priest of the Diocese of Montauban on March 30, 1952, doctor of theology, licentiate in philosophy and canon law, was known for his great knowledge of sects. In 1973, the Permanent Council of the French Bishops’ Conference appointed him delegate to the episcopate for questions on sects and new religious movements. He published many books on sects between 1976 and 2001, including Sectes et réveil religieux Quand l’occident s’éveille, Salvator, Mulhouse, 1976 and Les sectes, Paris, Presses universitaires de France, coll. « Que sais-je ? », No. 2519, 1990 or Dictionnaire des groupes religieux aujourd’hui, with Claire Moncelon, Presses universitaires de France, 2001.

[89] Arinze (Cardinal Francis), Le défi des sectes ou des nouveaux mouvements religieux, approche pastorale, in DC 19 mai 1991, No 2028, p. 483-499.

[90] Document-Episcopat No 15, novembre 1991, p. 3, col 2.

[91] The report was approved on 22 December 1995 by the seven members present, eight days after the massacre of the Solar Temple, including relatives of the victims and the filmmaker Yves Boisset have declared after the fact that it was not a collective suicide but a murder with a flamethrower. www.assemblee-nationale.fr/rap-enq/r2468.asp

[92] Outside of France, the Parliamentary report has been the subject of violent criticism, including that of Massimo Introvigne and J. Gordon Melton « Pour en finir avec les sectes le débat sur le rapport de la commission parlementaire. » http://ec.cef.fr/wp-content/uploads/sites/2/2014/05/pontier_reponse_hamant.pdf

[93] http://ec.cef.fr/wp-content/uploads/sites/2/2014/05/pontier_reponse_hamant.pdf

[94] www.eglise.catholique.fr/structure/cellule-pour-les-derives-sectaires-dans-des-communautes-catholiques/

[95] Sorlin (Soeur Chantal-Marie), on the staff of the Bureau des Dérives Sectaires www.eglise.catholique.fr/wp-content/uploads/sites/2/2015/03/CRIT%C3%88RES-sep.-2014.pdf

[96] Benedict XVI, , « Letter of His Holiness Pope Benedict XVI
to the Bishops of the Catholic Church Concerning the Remission of the Excommunication of the Four Bishops Consecrated by Archbishop Lefebvre
,” Vatican City, 10 March 2009, http://w2.vatican.va/content/benedict-xvi/en/letters/2009/documents/hf_ben-xvi_let_20090310_remissione-scomunica.html

[97] Trouslard (Jacques), Communication aux chefs d’Établissement de l’Enseignement Catholique. This document, put online by the Church of Scientology on October 18, 2002, was removed on 11 June 2006, at the request of the Apostolic Nuncio. http://scientologie.fraude.free.fr/12/opus-dosnon.htm, but parts of it may be found on other sites, like www.prevensectes.com/opus11.htm, consulted 17 December 2016.

[98] Decree of 13 July 2001, on the promotion and appointment to the Legion of Honor, JORF No.162 of 14 July 2001 p. 11,337.

[99] Cotton (Marc-André) « L’Etat inquisiteur », Editions des 3 monts, 3rd edition, Auxerre 2010, p. 14.

[100] Prot 49737/14 CA, cases submitted to Canonists without Borders.

[101] www.sos-derive-sectaire.fr/AIcourrier.htm consulted on 22 Septembre 2013.

[102] http://opuslibre.free.fr/v/spip.php?article22 Mgr. Trouslard joked about the phonetic similarity between being “obsessed by sects” that no one mentions, and being “obsessed by sex” that people speak about often.

[103] Vernette (Mgr. Jean-Maurice) He got married on July 24, 2002 in Toulouse to Ms. Liliane Josette Moncelon, whose name is in reality Claire, Liliane, Josette, as was recalled on 20 December 2002 by the family affairs judge of the Superior Court of Tours (France).

[104] http://ec.cef.fr/wp-content/uploads/sites/2/2014/05/pontier_reponse_hamant.pdf

[105] Francis (Pope) Homily of 30 January 2017, during morning Mass in the house-chapel of Saint Martha, Vatican City.

Justice for the Religious

Chapter 6: Justice for Religious

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

In the strict sense, the title should be « justice for the institutes of consecrated life by the profession of the evangelical counsels, the societies of apostolic life as well as their members, » but this title is long and also does not cover all the varieties of charisms and of rights, since there are religious and secular institutes, active and contemplative religious, hermits etc. We will therefore use the generic terms « religious » for members of religious institutes, and « consecrated » understood in the broader sense, for the whole of the persons referred to in the title above.

In the first place, let us express our deep gratitude to those of our contemporaries who devote their lives to intercession and selfless activity for the world and also for us, in the consecrated life within the Church. They are many:

In 2014, there were 54,559 professed religious non-priests in the world, while there were 682,729 professed religious, nearly [270,000] (39%) in Europe, 177,000 in America and 170,000 in Asia[1].

And here is their distribution in France:

  • 23,527 religious of apostolic life[2], distributed among 315 institutes, including 2,413 foreign religious in France and 1,463 French nuns abroad;
  • 5,741 religious divided among 86 institutes and monasteries, including 1,081 monks in 59 monasteries;
  • 3,131 nuns divided into 228 monasteries[3].

 

  1. The law and Its Application

The law pertaining to consecrated persons is strongly marked by the evangelical counsel of obedience.

1.1. Law and Obedience

After the decree of the Second Vatican Council Perfectae Caritatis, on the renovation and adaptation of the religious life, the magisterium devoted their five great specific texts[4], while Pope Francis reminds his workers about this:

Those who are disobedient must learn the beauty and the need of obedience, the tranquillity of soul that it provides […] In fact, as the saints and doctors of the Church teach, it is obedience which truly forms religious[5].

The Code of Canon Law devoted to religious a third part of its Book II, with 158 canons concerning institutes of consecrated life (c. 573 to 730) and 19 canons relating to societies of apostolic life (c. 731 to 749). Authors such as Jean Beyer have published several books of commentary on these canons, without however dealing with the applicable jurisprudence from the 177 corresponding canons.

 

The rights and obligations of religious actually result from the combination of five different rights, and several courts whose respective competences are specified to the Canon 1427:

  1. The rights and obligations of the Catholic faithful;
  2. Depending on their state, the rights and obligations of the laity or clerics;
  3. The rights and obligations of the members of the institutes of consecrated life and societies of apostolic life, following their state;
  4. The particular law of the diocese on which they depend, or of the Roman Congregation to which they are attached;
  5. The rights and obligations contained in their statutes, and the internal regulations specific to their own institutes, societies or congregations.

 

Compared to the simple faithful, religious who have taken the vow of obedience are subject to additional deprivation of freedom, like the employees of a business. Here is an example:

Upon his return from Sweden, Pope Francis responded to journalists about the charismatic renewal. He remembered his own reluctance during the birth of this movement, when he imposed specific rules on the Jesuits he headed: « One of the first opponents in Argentina was myself – because I was Jesuit provincial at that time (…) and I prohibited the Jesuits to have any connection with them. And I said publicly that when in a liturgical celebration it was necessary to do a liturgy and not a « samba school »  (escuela do Samba). That is what I said. And today I think the opposite. »[6].

 

In general, religious accept the restrictions imposed by their superior as a mark of love, but sometimes, rightly or wrongly, they do not understand or do not recognize these restrictions. Elizabeth McDonough[7] made a synthesis of their rights, such as provided for by the Code of Canon Law:

The Code of Canon Law directly or indirectly expresses very few rights for members of religious institutes; on the other hand, many rights their are limited as a consequence of their religious profession. As well, the only three rights clearly identified for the religious seem to be:

  • the right not to reveal their conscience to their higher[8];
  • the right to live the religious life[9];
  • The right to means of subsistence to accomplish their vocation[10].

When tensions arise inside a religious community, the religious concerned must respect their vow of obedience, knowing however that they are not required to obey an order if it is illegal or contrary to the spirit and the charism of the institute, as was indicated in particular in the Apostolic Exhortation Evangelica Testificato, on the renewal of religious life[11]:

And yet, is it not possible to have conflicts between the superior’s authority and the conscience of the religious, the « sanctuary of a person where he is alone with God, whose voice echoes in the depths of his being » (Gaudium et Spes 16)? Need we repeat that conscience on its own is not the arbiter of the moral worth of the actions which it inspires? It must take account of objective norms and, if necessary, reform and rectify itself. Apart from an order manifestly contrary to the laws of God or the constitutions of the institute, or one involving a serious and certain evil—in which case there is no obligation to obey—the superior’s decisions concern a field in which the calculation of the greater good can vary according to the point of view. To conclude from the fact that a directive seems objectively less good that it is unlawful and contrary to conscience would mean an unrealistic disregard of the obscurity and ambivalence of many human realities. Besides, refusal to obey involves an often serious loss for the common good. A religious should not easily conclude that there is a contradiction between the judgment of his conscience and that of his superior. This exceptional situation will sometimes involve true interior suffering, after the pattern of Christ Himself « who learned obedience through suffering (Heb 5, 8).”

 

The Apostolic Exhortation evokes the salutary suffering between the point of view of a religious and that of his superior, who must maintain ecclesial communion with appropriate penalties, in compliance with the rules of law. Normally, the rights and obligations of consecrated persons are respected within the religious institutes or secular of apostolic life themselves, by the fact that the superiors exercise their authority with « firmness without rigor and sweetness without weakness,” in respecting the law and human persons, in accordance with canons 617[12] et 618[13]. The question nevertheless arises of what happens when the right is not respected by the religious or by his superior.

 

1.2. The Protection of Rights and Obligations

In her doctoral thesis, Scholastica Empela Ankonelle[14] referred to situations where a religious community becomes a place suffocating, of suffering and despair:

Community life is visibly marked by behavior contrary to what is meant by a community united in the name of the Lord […] Where superiors or the authorities tend to promote their ethnic group to the detriment of the general interest, […] the indifference of some and of others, the denigration, the negative criticism, idleness and the jealousy, the defamation and the lack of confidence make the brotherhood a yoke difficult to bear.

She considers that:

The crisis of authority influences that of the vow of obedience, by the lack of awareness of the rights and obligations of both.

Michael Rosinski observed that conflicts within all human groups are normal, but superiors of religious institutes are not always well trained to resolve difficult cases.

Superior of religious institutes rightly have discretionary authority to address matters, including disciplinary matters, about which the law is silent. Rarely however, do superior in religious life have adequate experience of training to address complex disciplinary cases in ways that follow the relevant law, respect the right of all parties, and ensure the safety of potential new victims[15]

More generally, Josu Mirena Alday[16] refers to six different ways of living one’s membership in a religious institute marked by problems of authority and of fraternal life:

  1. Renewed membership, from the vocation;
  2. Fidelity and silence, trusting in superiors as they are;
  3. Criticism and tension, with a firm sense of belonging and criticism;
  4. Affliction and nostalgia, with a fatalistic attitude;
  5. Escape, with a progressive abandonment of the practices of the institute;
  6. Non-existence, with a totally distended connection.

Also here, she does not mention explicitly making recourse to the justice of the Church in the history of the Sisters of Saint Therese of the Child Jesus in Lisala (DRC), to strengthen their identity as consecrated persons, do justice and bring peace.

 

Still, there are many cases of religious who, rightly or wrongly, feel harassed in their own religious community, and they look to their superiors or to a canonist to find support in order to objectify their situation. Here is first of all an interesting case where one sees a superior, before becoming Pope, apply sanctions to protect the common good of the community, respecting the right of defense of the religious concerned.

When he was provincial superior of the Jesuits of Argentina, Jorgse Mario Bergoglio imposed sanctions at the end of the 1970’s, against the Jesuit Fathers Orlando Y. and Francisco J. who experimented with a form of liberation theology deemed unacceptable. He formally recalled them, ordering them to move elsewhere and to dissolve the community that they had created. Before their refusal, he reiterated his order but they made objections of conscience.  Thus Bergolio contacted the General of the Jesuits in Rome, Pedro Arrupe, who responded that both of them had to obey[17].

 

In this example, one almost has the impression that it is the Provincial Superior who made a hierarchical recourse against the objection of conscience of Jesuits religious. Yet the most frequent case is recourse of religious against decisions of their superior that they consider illegal, or at least illegitimate. In fact, there are cases where a religious undergoes harassment[18], theoretically illegal under French law, but often he endures it because of his vow of obedience. In such situations, recourses are rare, since in general, the conflict ends by a submission or an amicable agreement, dismissal of the religious, or by his transfer to another place, as in the two examples below reported by Marco Politi:

Since the 1970’s, 152 Via Ostiense has been the seat of the community of Saint Paul, formed after the dismissal of the former abbot-bishop of the old monastery of Saint Paul Outside the Walls, Giovanni F., for having denounced the involvement of the ecclesiastical hierarchy in real estate speculation in Rome[19].

 

In 1995, the Congregation for the Doctrine of the Faith imposed two years of silence on Sister Ivone G., ex-professor of theology at the University of Sao Paolo in Brazil: prohibition of teaching, publishing, speaking in public and giving interviews. She is currently exiled in Belgium[20].

 

We do not have the information or the experience necessary to discuss justice inside religious institutes, and such is not our subject. We speak, however, of the importance of preventative measures to avoid conflicts:

The Bishop of Nouakchott (Mauritania) celebrated every day his Mass in a parish or different religious community, so that he regularly attended the religious communities of his episcopal city. Thus, he knew enough to feel a possible tension between members. In such cases, he took the time to sit down to identify the problem with the persons concerned and resolve the problem before it festered. With regard to the religious houses located in his diocese extended over a million km², he keeps himself informed of what is happening, welcoming visitors of any kind who come.

In other cases, the superiors are not as vigilant and situations fester, and then religious make an appeal to higher authorities:

In Africa, a contemplative monk discovered illegal trade between the superior of the convent and the ladies of the city, associated with transgressions of ecclesiastical laws with respect to the temporal administration of goods and child pornography. Serving as a member of the Superior Council, in accordance with the suffrage of the Community, he asked for clarification and respect for the Constitutions, but his requests were ignored. He dissociated himself explicitly from these practices involving several members of the community, then the supreme moderator asked him to be patient. In March 2016, the Abbot General made a canonical visit, but the complaints of the monk were apparently ignored, and he was exiled to another community in the religious order, on the grounds of « disrupting the peace.” With the help of Canonists without Borders, the religious tried to objectify the law and justice in the spirit of teaching on authority and obedience, and considerations on the possibility of making recourse, as discussed in Chapter 12 of this book[21].

If preventative measures are not implemented or are not sufficient, and tensions are not resolved inside the institute, let us see whether the organs of ecclesiastical justice manage to resolve these difficulties. This situation usually occurs when a religious has no more hope of resolving the conflict through dialogue, for example, when after years of consecrated life, where he has given all of himself, threats are made of temporary dismissal (exclaustration) or final dismissal, and this threat begins to be put into execution.

 

This does not happen often because in general, religious are not familiar with their rights, and even less with the means to defend them. In addition, superiors sometimes prevent the religious from making external contacts when they have the impression of an unjust situation in their community, as shown in the motion to expel a Brazilian religious, containing the following clause prohibiting the religious of continue its contacts with canonists without authorization:

I ask you to ask the normal permissions (for departures, moving, external contacts…) to Father…[22]

 

In other cases, abuse seem to come not from superiors but of religious as seen in the case below:

A Carmelite sister suffered from clinical depression in a convent, but then she seemed to recover and made her final vows. Shortly thereafter, she left the convent and her relatives were given to think that the Carmel was the cause of her illness.  Therefore they sued the Carmel in civil court, claiming damages and substantial interest, which the judge awarded them.  The amount of the settlement was a significant sum for the Carmel, and so as a result, the sisters who remained faithful have lived in great poverty ever since[23].

 

In this case, canon law applies to the acceptance of the final vows of the religious, and to the departure of the religious from the convent; but it may be asked whether, in the case mentioned, it was applied correctly. The law of the State (labor law) is applied to relatives of the former religious in relation to her convent. In such cases, one may ask if the superiors were not too intransigent with the religious when she was still in the convent; or, alternately, if they acted correctly, but then made procedural mistakes in the course of the trial, being poorly advised legally, or if finally the judge acted in a biased manner, being influenced by anticlerical prejudices.

 

In the event of insurmountable difficulties with the dialogue, a first level of mediation can allow internal tensions to be resolved. Various organizations work in support of religious institutes and/or their members.

 

They act in particular in favor of religious, but the absence of contradictory procedure with their institutes can create a risk of prejudice in favor of false victims:

  • The Avref[24], an association that assists victims of the deviations of religious movements in Europe and their families, plays an important role in dialogue and discernment, in particular by allowing victims to take a step backward relative to what they live[25];
  • The ICSA, the International Cultic Studies Association[26], which is the international partner of the AVREF;
  • The French Diocesan Service « Pastoral,” new beliefs and sectarian deviations[27] was created in connection with the cell for sectarian deviations in the Catholic communities of the Conference of the Bishops of France[28].

The following two act in favor of the religious institutes, in seeking to protect them legally against actions taken against them by the State or by their own members:

  • The CORREF, Conference of Religious of France[29], brings together major superiors and explicitly provides « assistance and support to institutes » if they cannot deal with their members.
  • At the international level, the International Council of Canonists[30], founded on 9 May 2016 by the International Union of Superiors General (IUGS) provides legal consultation to its members. Unfortunately, this organization does not actually intend to provide legal assistance to religious, but only to the general superior.

There is finally a body that acts in different ways, respecting the right of defense of the two parties, namely the « Welcome Mediation Service for Religious Life and Community » (SAM), created under the authority of the Coordinating Committee of the Episcopal Commission of Consecrated Life and Conferences of Major Superiors within the Conference of the Bishops of France. Its aim is the following:

…Welcome and listen to persons (parents, members of communities old or new, former members) aggrieved by the actions of a Catholic community and/or denouncing its malfunctions (abuse of authority, mismanagement of property, manipulation…) [31]

 

Its origin and its operation are specified in a report of 2006[32]. With regard to the results, Christelle Javary[33] specifies:

The SAM supported a low number of mediations, but plays an essential role in listening to and pacifying people who make contact with [it]. The most important result is without doubt that of having benefited from its experience to inspire recommendations which aim to prevent future conflicts. It is also likely that the discretion (that can be judged excessive) of the SAM limits the number of appeals which are sent to it. […] The SAM is an innovation of the Church of France, which apparently has no equivalent elsewhere. The SAM has shared the fruits of its experience in many interesting and useful ways, in publishing two reports on points of attention to respect: one, in April 2005, on « Psychological and Spiritual Rapport in Communities. Confusion to avoid »; the other, in September 2008, on « Points of Vigilance Regarding the Religious or Community Life.” […] The Church is therefore not devoid of means to ensure the protection of the faithful who engage in the religious life.

Thus, despite its lack of legitimacy, « Canonists without Borders[34] » remains necessary to inform religious who want to know which law applies to them and how to enforce it. When receiving requests from members of a French Congregation, Canonists without Borders used to advise them to apply to SAM. Let us see what happened:

On 11 May 2016, a religious of Niger learned that she was not authorized to make final vows after five years of temporary vows. As she insisted, the superior of the convent threw her outside with her luggage; but not knowing where to go, she sat in front of the convent, until two days later, the faithful were upset and told the bishop, who welcomed her in the premises of the cathedral. At first sight, the decision of non-admission has three irregularities since it was made by the Vice-Provincial and not the General Superior, it had not been preceded by any of the monitions required by canon 697, and it did not contain specific elements of the grievances that would allow the religious to exercise her right of defense. With the help of a judge from the diocesan tribunal, the sister then made hierarchical recourse to the Superior General, who called her several times on the phone announcing a written response, but nothing came. Then, the judge directed her to Canonists without borders,which in turn sent her to the welcoming and mediation service of the Conference of the Bishops of France (SAM), which responded on 8 December 2016 without even having investigated: « The Superior General is responsible for the phases of the religious life, [the sister] must therefore accept this decision. The time limit for appeal is 10 days, which has long since passed. The SAM therefore cannot help.” When questioned on this refusal, the SAM responded informally to Canonists without Borders that to engage in mediation, there must be two, which suggests that the congregation of the sister was contacted by the SAM, and had refused the principle of a mediation. On 21 December 2016, the congregation sent her a letter of dismissal dated November 8, 2016, asking her to leave the religious habit.

 

Sometimes, instead, the intervention is beneficial:

Having been expelled from his congregation, whose leaders behaved in a totalitarian manner, and no longer have any means of subsistence, the state of health of a religious was deeply affected when he appealed to Canonists without Borders. He was encouraged to maintain his confidence in God, avoiding the two pitfalls of shame and hatred, and to defend his rights by contacting the SAM. The latter then conducted a mediation, which allowed him little by little to obtain a indult of exclaustration under satisfactory conditions.

The second level of juridic recourse is that of classic hierarchical administrative recourse, as per canons 1732ff. From his investigation in the American dioceses, James Provost found that the number of hierarchical recourses by religious is low, since he only counted two recourses in 141 dioceses over 16 years. Here are two hypotheses to explain this surprisingly low result:

  • Either the protection of rights inside religious communities is effective enough to ensure that the religious do not need to go to outsiders; or
  • The difficulty for the consecrated to make hierarchical recourse is such that they prefer to leave their community of their own volition[35], or are excluded by it, before appealing to ecclesiastical justice.

Here is a prime example of unsuccessful recourse:

Having received a notification of non-acceptance of her religious profession, an African religious who had spent ten years in a congregation made hierarchical recourse to the Roman Congregation responsible for religious. She received a negative response by e-mail stating that the refusal of renewal of vows is not tantamount to removal, and obliged her to obey. The sister then requested a new review, citing the paragraphs of the Congregation’s own statutes, which had not been respected in the process. For unknown reasons, the Congregation did not address the irregularity, although the religious, who waived contentious-administrative recourse, must start her life over from scratch in the secular world, without a family and without support other than that of Canonists without Borders, which permitted her to buy a embroidery-machine, to allow her to earn a living[36].

 

And here is an example of the successful use:

Having received two warnings of expulsion from his Superior General, a religious contacted the « Cell for the sectarian deviations in Catholic communities[37] » of the Bishops’ Conference of France, which identified ten legal irregularities in the conduct of the Superior General. On the advice of the cell, the religious made hierarchical recourse requesting the nullification of the General Chapter of his congregation, which was held illegally, since he himself had not been notified of it. Informed of this hierarchical recourse which annoyed him, the Superior General intervened with the competent dicastery of the Roman Curia, namely the Commission Ecclesia Dei[38], and the Commission finally responded to the religious who had written several emails to them without response. A compromise solution was found and implemented.

 

The third level is that of contentious-administrative recourse, whose number is relatively important. Indeed, our database shows that:

  • Religious initiated 162 recourses, representing 22% of 742 remedies for which the petitioner is identified[39];
  • The decrees of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life are the subject of 270 recourses, representing 31% of the 857 remedies for which the Dicastery is identified.

In fact, recourses cover two major areas which will structure our chapter. The first concerns justice for consecrated and other physical persons, while the second concerns justice for juridic persons which are the institutes of consecrated life and societies of apostolic life.

This chapter will attempt to clarify the situation regarding contentious-administrative jurisprudence relative to consecrated persons. We will build in particular on the analysis carried out in 1986 by Francesco of Ostilio[40], on 90 contentious-administrative recourses presented by religious or by their institutes.

  1. Justice for Religious

The 1978 activity report of the Holy See indicated that, among the three types of administrative acts which are most often the subject of administrative recourse with the Supreme Tribunal, two concerned religious, namely cases of exclaustration and cases of resignation[41].

More specifically, F. Ostilio[42] classes the recourses according to these main headings:

  • Conflicts with superiors and chapters (cc. 596, 617);
  • Admission (cc. 597, 641-658, 720-723, 735), formation (cc. 659-661, 724, 735), geographic exclusion (c. 679), temporary exclaustration (c. 686, 745) and the final departure of a member (cc. 686-704, 729, 742-743);
  • Election and removal of superiors (cc. 623ff.) or offices (c. 682);
  • Pastoral or apostolic visits (c. 628).

 

From the work of Ostilio, Javier Canosa[43]  sought the « major judgments » favorable to religious, which marked the first 40 years of administrative case law. He noted:

  • The recognition of the right of defense, acknowledged by the second section as early as 1973, based on natural law and not on a particular canon (Prot 2973/72 CA).
  • The reminder of the principles (charity) and the function of the law (to cure and not to punish), taking into account the situation of persons, in this case a sister who had lived and worked for many years in her congregation (Prot 10460/78 CA) [44].
  • The possibility offered by the Secretariat of State for a Tribunal to judge a case on its merits, which has provided the basis for repair of damages in the case of a professor fired unjustly (Prot 10977/76 CA)[45].
  • The refusal to accept an order of expulsion on the basis of moral certainty, and not of objective facts to substantiate this certainty (Prot 17156/85 CA).

 

Without being confrontational, let us start with departures from institutes, before addressing other administrative acts.

2.1. Departure from Institutes

The activity report of the Congregation for Religious[46] lists for 2015:

  • 369 requests for exclaustrations granted;
  • 8 exclaustrations imposed;
  • 2,073 indults of departure granted;
  • 213 decrees of dismissal confirmed.

 

Here is an attempt at explanation:

One of the realities that quickly strikes any new employee of the Dicastery [the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life] is the continued growth of the number of departures from institutes of consecrated life and from religious institutes in particular. Our services address up to 3,000 applications per year for departure from the institute! […] According to statistics, the grounds relied on in support of the applications for departure are predominantly related to a crisis of faith and then to difficulties in fraternal life and finally, to a lesser extent, an emotional deficit. […] Nevertheless, although the departures are numerous, we must keep in mind that a tree that falls makes more noise than a forest that grows. If there are infidelities, let us remember that there is especially a lot of holiness in the religious life.[47]

 

In law, the departure from their community by consecrated persons (in the broad sense) is governed by canons 686 and 687 for religious institutes, 726 to 727 for secular institutes, and 742 to 745 for societies of apostolic life, as well as by the statutes of their own communities. The situations are diverse, as Yuji Sugawara indicated[48] :

  • Departure of a novice (c. 653 §1);
  • Exclaustration imposed by the Holy See (c. 686 §3);
  • Departure imposed an a member with temporary vows (c. 689);
  • Voluntary departure from an institute (c. 691-3);
  • Ipso facto dismissal of a member (c. 694-700);
  • Obligatory dismissal (c. 695);
  • Facultative ordinary dismissal, which in fact constitutes expulsion at the discretion of the superior (c. 696-700);
  • Immediate expulsion as a result of a very serious fault (c. 703).

Without examining every conceivable case, let us look at a few cases among those which give rise to litigation the most frequently.

2.1.1. Voluntary Departure from an Institute

The grounds for departure from institutes are numerous[49]. Some religious leave their institute following the non-renewal of their provisional vows, either voluntarily[50] or after a decision by superiors. Others seek to take a step back and ask to be absent from their institute, which requires:

  • a leave of absence for a maximum of one year under canon 665[51];
  • an indult of exclaustration for a maximum of three years under canon 686 §1;
  • authorization for transfer to another institute under canons 684ff., or even a indult of exclaustration under canon 691[52].

The three most common reasons in support of a request for a leave of absence or exclaustration are the need to provide assistance to one’s family, illness, and the needs of a particular apostolate[53].

The permissions and corresponding indults are considered favors, which may be refused. If a law seems to have been violated, one whose request is denied may then make a recourse which is accepted[54], rejected, not admitted to discussion or resolved by transaction, depending on the case.

2.1.2. The Departure of a Novice or a Religious in Temporary Vows

Canon 653 §1 provides that:

Can. 653 §1. A novice can freely leave an institute; moreover, the competent authority of the institute can dismiss a novice.

In the event of separation, it is not legally necessary to indicate the causes of departure or of the reference of a novice, unless the particular statutes of the institute require it. Reciprocal charity may, however, require it to be done.

If it is a case not of a novice, but of a religiou

s in temporary vows, who may have given up to nine years of his life to an institute, canon 689 requires a decision by the major superior, a just cause and a hearing by the council, but not necessarily the agreement of the latter, knowing that the statutes of institutes can impose additional conditions.

Can. 689 §1. If there are just causes, the competent major superior, after having heard the council, can exclude a member from making a subsequent profession when the period of temporary profession has been completed.

Subject of the own right to the Institute, canon 689 §2 and §3 specify under what conditions a disability may be a cause of separation. Additionally, charity demands that the novice or professed member be left without means, to return to his family or to survive for some period of time.

2.1.3. Imposed  Exclaustrations

Sometimes, a religious does not wish to be absent or depart the institute but it is his superiors who wish to separate from him. One of the solutions that will then be presented to superiors is to impose on a religious exclaustration, temporary or final, under canon 686 §3, for a grave cause such as, for example, the inability to live the common life, prolonged absence from the religious house, or repeated violation of the vows of obedience and poverty.

  1. 686 §3. At the petition of the supreme moderator with the consent of the council, exclaustration can be imposed by the Holy See on a member of an institute of pontifical right, or by a diocesan bishop on a member of an institute of diocesan right, for grave causes, with equity and charity observed

Without entering in detail, let us remember that the religious concerned is then exempted from the obligations which are inconsistent with his new state, but he continues to depend on his superiors. Some then file recourses which are accepted[55], rejected[56], not admitted to discussion[57], abandoned or settled by transaction[58], depending on the case. Here is an example of case law:

In the case Prot 18061/86 CA[59], jurisprudence observes that exclaustration imposed for three years under canon 686 does not require a serious fault, but rather a serious reason.

 

Relying on jurisprudence, Sister Dominique Moral-Carvajal[60] mentioned several grave causes likely to lead to imposed exclaustration after alternative solutions have been attempted without success: personality disorders and psychic anomalies identified by experts, alcoholism causing a serious scandal, illegitimate and prolonged absence, disorder in community life, discord and repeated complaints. She observed that the Code does not mandate a particular procedure for imposing exclaustration, but in the absence of precision in the statute, it is necessary to respect, with a lesser degree of rigor, the procedure for making religious in simple vows aware of an admonition in advance, their right of defense, the decision of the Council reached by secret ballot, or even a letter of the institute committing to provision of material and moral support, and reference to the possibility of making recourse.

Sugawara[61] also specified that imposed exclaustration has to be the subject of a special written decree, the person concerned must remain outside of the Community until the established time but remains a member of the institute, without the right to vote, and must be helped medically or physically if necessary[62]. The exclaustrated religious is then required to lead a simple life, and to observe his vows and the obligations of his profession, with the exception of those that are incompatible with his new state of life (c. 687). He remains dependent on the local bishop, especially if he is a priest.

To readers who want to study the question more deeply, we recommend the work of Madeleine Ruessmann[63] and Moral Delfina Carvajal as well as Sugawara, stating nevertheless that final exclaustration imposed in a case of serious misconduct is reserved to the Holy See for institutes of pontifical right, and to the diocesan bishop for institutes of diocesan right, « while observing equity and charity. »

2.1.3. Explulsions 

Sometimes, superiors want a member of their institute to depart, and they remove him in virtue of canons 696 to 701[64], for a reason that is « serious, external, imputable and legally proven.” Javier Hervada commented on the evolution of the applicable law:

Now, any legitimate dismissal –that is to say provoked by a sufficient cause and carried out according to established procedure— ipso facto entails the cessation of vows and of other rights and obligations. The procedures differ depending on the reasons for the dismissal, and not on the basis of the legal situation of the religious. These are:

  1. automatic expulsion when the conditions of canon 694 are met;
  2. mandatory expulsion when certain offenses have been committed, following the procedure laid down in canon 695;
  3. expulsion for other causes that do not necessarily constitute an offense, as determined by canon 696;
  4. expulsion when there is an « urgent cases,” that is to say when there is a grave external scandal or very serious imminent harm for the Community, according to canon 703.4[65].

As regards the possible causes for expulsion, the list (only indicative, not exhaustive) provided by canon 696, §1 constitutes an important innovation.

Can. 696 §1. A member can also be dismissed for other causes provided that they are grave, external, imputable, and juridically proven such as: habitual neglect of the obligations of consecrated life; repeated violations of the sacred bonds; stubborn disobedience to the legitimate prescripts of superiors in a grave matter; grave scandal arising from the culpable behavior of the member; stubborn upholding or diffusion of doctrines condemned by the magisterium of the Church; public adherence to ideologies infected by materialism or atheism; the illegitimate absence mentioned in can. 665 §2, lasting six months; other causes of similar gravity which the proper law of the institute may determine.

The legislator did not want this delicate matter to be determined exclusively by proper law, but has put tangible parameters, so as to always protect the rights of religious, the common good of the institute and, ultimately, that of the Church. Often the reason cited by a superior is the refusal to obey that is addressed in canon 601:

Can. 601 The evangelical counsel of obedience, undertaken in a spirit of faith and love in the following of Christ obedient unto death, requires the submission of the will to legitimate superiors, who stand in the place of God, when they command according to the proper constitutions.

However, Georges Mboma thinks that this canon does not correspond to the African reality and he wrote a specific book[66] by which he tries to reconcilie law and the local situation. Several dismissed religious told that they had been expelled for usually improper motives.

  • I have been dismissed without any reason
  • I am dismissed because I eat a lot
  • I am dismissed because I spoke to a brother at the shower
  • I am dismissed because of the clothe I received as gifts from friends
  • I am dismissed because the superior cannot stand me
  • I am accused of being visited by people who are not well known
  • I have been a victim of the hatred that the superior had against my tribe

Observe that the disobedience is not always a reason for expulsion, because:

A religious is required to obey his superior, but the latter does not have absolute power to order anyone to do anything[67].

Similarly, a religious is not required to obey an order that is illegal or contrary to the spirit and the charism of the institute. Canon 618 specifies the obligations of the superior:

Can. 618 Superiors are to exercise their power, received from God through the ministry of the Church, in a spirit of service. Therefore, docile to the will of God in fulfilling their function, they are to govern their subjects as sons or daughters of God and, promoting the voluntary obedience of their subjects with reverence for the human person, they are to listen to them willingly and foster their common endeavor for the good of the institute and the Church, but without prejudice to the authority of superiors to decide and prescribe what must be done.

The three previous texts are designed to prevent and avoid the abuses which might result from an insufficient protection of the principle of authority or of the rights of the faithful[68]. Their interpretation is the subject of commentary by canonists, among whom is Christian Begus, based on two cases of jurisprudence[69], of which we will provide the conclusion:

  • The lack of absolute character of obedience includes the possibility for the religious to conduct an assessment of the legitimacy of the order received, formally or substantially. […]
  • In the case of disobedience by the religious, in addition to the criterion of putability, that includes an element of fault, it appears possible to identify another, considering the importance given to the causal link between the conduct of the religious, the facts and the disobedience, in the absence of evaluation of his own negligence;
  • The protection of the rights of defense has an absolute value, and it is the subject of particular attention in facultative dismissal, taking into consideration its multiple aspects, even if not explicit, which relate to the entire course of the procedure: the initial admonition, probationary time, and the possibility of presenting an adequate defense. Conversely, this protection does not necessarily include the presence of a canonically competent defender. The religious may designate one, but he cannot claim the title of an official defender[70].

In reality, the situation is sometimes less clear, as we have seen with the religious of Niger and the Brazilian religious (see above). Except in the case of dismissal ipso iure, for marriage[71] or notorious abandonment of the Catholic faith in law or in fact (e.g. conversion to Protestantism or orthodoxy), the decree of expulsion becomes enforceable within 10 days, possibly to leave time for the religious to make recourse, which then has suspensive effect. In effect, a sentence of 24 February 1973[72] constitutes jurisprudence on the subject and has inspired canon 700, specifying that the recourse has suspensive effect.

Since the intervention of the Curia is required for forcible dismissal, the question arose as to whether an expelled religious must make hierarchical recourse before or after the decision of the Curia. Following the promulgation of the Code, the Commission for the Interpretation of Legislative Texts[73] responded to this issue by specifying on March 21, 1986 that the dismissal of religious, members of the societies of apostolic life and secular institutes must be notified to the person concerned only after having been confirmed by the Holy See. The latter can then make hierarchical recourse to the Roman congregation, but not immediately to the Supreme Tribunal[74]. In practice, every year some expelled religious make hierarchical and contentious-administrative recourses. Depending on the case, these recourses are deemed inadmissible[75], not admitted to discussion[76], abandoned in the course of the procedure[77], rejected[78] or accepted[79], which shows that justice plays its role. As an illustration, here is a prime example of an accepted recourse:

In case Prot 31290[80], the Tribunal estimated that the obligation to give the accused the right to defend himself requires that he be provided with the statements of witnesses and in the present case, this right was not respected, and thus his expulsion was regarded as illegal both procedurally and on the merits.

 

Here is an example of a recourse that was dismissed:

In case Prot 37163[81], a religious who was living outside of his province was held to have been injured, because the decree of expulsion issued against him in conformity with canon 697 did not give him the choice between repentance or expulsion, but proposed only the solution of expulsion. The Apostolic Signatura held that repentance had been proposed to him, and it dismissed the recourse.

 

And here is a second example of a rejection:

In case Prot 18061[82], Sister Monica complained that the reasons for her forced exclaustration were not communicated to her, and that consequently she was unable to properly employ her right to defense. The Tribunal found otherwise, considering that, even if the motivations for the exclaustration had not been communicated in writing, she knew well enough what they were. Certainly, canon 51 specifies that « A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision, » but the Tribunal estimated that a general explanation was sufficient, inasmuch as the documents previously forwarded provided clarification and could be considered as decrees within the meaning of canon 49.

 

Expulsions have consequences for the people who leave their institutes, and their situation is sometimes the subject of a new litigation.

2.1.4. The Consequences of Expulsion

One of the disputes which sometimes accompanies the expulsion of a religious concerns the social rights that he acquired while in the service of his congregation[83].

Canon 702 specifies:

Can. 702 §1. Those who depart from a religious institute legitimately or have been dismissed from it legitimately can request nothing from the institute for any work done in it.§2. Nevertheless, the institute is to observe equity and the charity of the gospel toward a member who is separated from it.

Finding the right balance between the two paragraphs of this canon has been the subject of various interpretations by the Roman Curia[84]  and canonists[85]. It follows that material assistance is necessary for a initial period, permitting the person to find a means of supporting himself.

In French law, the 9 December 1905 law on the separation of Church and State has remanded vowed religious into the sphere of private activities, under the control of the courts[86]. These take into account, however, the vow of obedience of some religious, distinguishing their spiritual activity from their labor relations. It results in a secular jurisprudence that is uncertain and therefore complex, reported by Patrick Boinot[87] from nuanced judgments of the Court of Cassation, of which here are some examples:

Regarding a religious who had worked as a nurse at the Little Sisters of the Assumption, the plenary assembly established on 8 January 1993 that Ms.… had exercised her activity only for the benefit of her congregation, a fact which excluded the existence of a labor contract.

 

However,

Regarding two married members of a new community which does not have the status of a religious congregation, the Social Chamber of the Court of Cassation ruled on 29 October 2008 that « regardless of the spiritual nature of their commitment,” these two people « worked for the association in a relationship of subordination characterizing a labor contract. »

 

Finally,

Regarding Ms…, bound by religious vows in the community of the Glorious Cross which she later left, the Social Chamber of the Court of Cassation ruled on 29 October 2008 that « the existence of a relationship of employed labor depends neither on the willingness expressed by the parties, nor on the name that they have given to their agreement, but on conditions of fact in which they engage in the activity of workers; the religious commitment of a person is likely to exclude the existence of a labor contract only for activities that he performs for the benefit of a legally established congregation or worship association.” In this case it recognized the existence of a labor contract with the consequences that follow.

 

With respect to retirement benefits, Patrick Boinot stated that as of July 1, 2006, the social security fund (CAVIMAC) takes into account the years of Postulancy and Novitiate for the calculation of pensions, based on the case law of the Court of Cassation, which was then translated into the law No. 2011-1026 of social security funding for 2012 and article L. 382-29-1 of the Social Security Code.

2.2. Other Recourse for Consecrated Persons

  1. Ostillo indicated the existence of contentious-administrative recourse for religious on a variety of topics, such as:
  • Refusal of admission to the profession temporary or final;
  • Withdrawal of a position in the field of education (canon 192-5[88]);
  • Withdrawal of the faculty to hear confessions[89];
  • Transfer to another house;
  • Deprivation of active and passive voice;
  • Expulsion from the diocese by decree of the bishop;
  • Refusal of the permission to dedicate themselves to study.
  1. Justice for Institutions of Consecrated Persons

The 2001 Pontifical Directory states that there are 1,992 institutes of consecrated life and societies of apostolic life distributed as follows:

Men’s Institutes Women’s Institutes Total
Religious Institutes 193 1641 1834
Secular Institutes 16 95 111
Sociéties of Apostolic Life 35 12 47
Total 244 1748 1992

 

Among them, the religious institutes are by far in the majority, and so we will address ourselves mainly to their situation, not without some digressions for the secular institutes and societies of apostolic life. The 2015 activity report of the Congregation states that there were 136 authorizations for erection of religious houses during the year[90]. Besides the recourses by religious and consecrated persons, there are also recourses on the part of the institutes of consecrated life and societies of apostolic life or their superior. There are three types of difficulties:

  • Suppression of religious houses;
  • Claims of property rights;
  • Interference in the management of the institutes.

3.1. Creation and Suppression

The law relating to religious houses is defined by the following canons:

  • The approval (c. 576, 579, 587, 595, 605); reorganization (c. 580); division (c. 581); merger (c. 582); modification (c. 583, 595); suppression (c. 584, 585); exemption (c. 591), erection of houses (cc. 609ff.; 733);
  • The management of the materiel assets of institutes (cc. 634-640; cc. 718, 741) and their members (cc. 668-670).

This right is amended regularly, as shown for example by the interpretation of the Pontifical Council for Legislative Texts, which ruled on 14 July 2016 that the Major Superiors of clerical institutes of pontifical right do not have competence to erect pious foundations within the meaning of canon 312 §2[91].

The Pontifical Directory indicates the date of foundation of the institutes of consecrated life and societies of apostolic life, as well as the date of their canonical recognition, making it possible to measure the average duration of recognition. In carrying out this work on the 2011 directory, there appears a distribution that is almost uniform with the deadlines of recognition between a few months, and more than 50 years, highlighting the fact that it is not a right but a grace:

< 1 year     1-5 y.     6-10 y.   11-15 y.    16-20 y.    21-25 y. 26-30 y.  30-35 y.  36-40 y.   41-45 y. 45-50 y. > 50 years

 

In this regard, we have not found a remedy against non-recognition of a religious or secular institute. It is otherwise for decisions about suppression of monasteries[92] or during division (Prot 39257/06 CA), or unions (Prot 40608/07 CA) of religious institutes. Here, among others, is an example of recourse:

After preliminary agreement by the Congregation for Religious and Secular Institutes, a diocesan bishop suppressed a religious house by a decree on 29 July 1970, particularly because of the advanced age of the religious. After deliberation in their chapter, the religious made a hierarchical recourse, and then a contentious-administrative recourse with the second section, and the Pope himself mandated a Pontifical Commission to examine the case on the merits and not only on the legality. On 24 February 1973, the College of the Tribunal nullified the decision and imposed the restitution of the monastery on the basis of cc. 493 and 498 of the CIC/17, that the Bishop was not empowered to take such a decision, as it was within the competence of Rome.

 

3.2. Property Rights

The issue of property rights is sometimes difficult in the case of the reorganization or suppression of institutes, sometimes resulting in recourse after the Congregation or the Supreme Tribunal recognizes the right (e.g.: Prot 384/68 CA).

Property are also occasions for disputes between the diocesan bishop or a parish, and a religious institute, as it seen in several cases in the 1987[93] activity report. Here is an example dating from 1972:

A conventual building that belonged to a religious institute had become the property of a parish following the Concordat of 1818 with the Kingdom of Naples. But 150 years later, the institute claimed its rights and won the case with the Congregation of the Second Vatican Council (now the Congregation for the Clergy), but the parish then made contentious-administrative recourse with the Supreme Tribunal. On December 12, 1972, the College quashed the decision of the Dicastery, which included a defect of form[94].

 

There are other cases where conflicts of ownership are ended by a transaction between the parties during the time of instruction of a contentious-administrative recourse (ex Prot. 384/68 CA); here, finally, is a dispute between a religious institute and a member of the Catholic faithful, solved thanks to ecclesiastical justice:

In 1950, an individual had loaned a sum of money to a religious congregation in France. The superior repaid the first installments, but his successor did not continue. The individual turned to the diocesan Tribunal, which ruled in his favor. The religious province filed an appeal to the Rota, which confirmed the decision of the diocesan Tribunal, and the Province was given a mandate to calculate the interest on the loan amounts. Challenging this decision, the superior finally addressed the Apostolic Signatura, which did not admit his appeal (Prot No. 923/70 C.G.).

 

Without going into detail, we could still cite:

  • A query to the Congregation for the Institutes of Consecrated Life and Societies of Apostolic Life for a debt ceiling[95];
  • Other types of appeal concerning the rights of ownership of the institutes, of goods derived from pious wills (ex: Prot 11876/79 CA).

3.3. The Management of Institutes

Frederico d’Ostilio identified five contentious-administrative recourses against a decision of the Congregation for Religious and Secular Institutes, relating to the internal management of institutes. The decisions of the Tribunal are sometimes in favor of the petitioners:

The general superior of a Secular Institute in Lyon was expelled before the end of her mandate by a decision of the Congregation for Religious and Secular Institutes, leading to early elections. The old and the new superior general went to the Supreme Tribunal, which nullified the decision of the Dicastery by sentence of 26 June 1976. (Prot 6508/75 CA).

 

And sometimes they are in favor of the Dicastery:

Having been invited by the Congregation for Religious and Secular Institutes to submit his resignation as a result of the serious irregularities in the management of an institute, a superior general refused the invitation and was deposed by the diocesan bishop. She made recourse against the decision and her recourse was admitted to the discussion, but the College finally judged on 14 December 1964 that her removal was consistent with the law.

 

Other cases of this type have been ended by an agreement between the parties during the instruction of a contentious-administrative recourse brought against a decision of the Congregation for Religious and Secular Institutes (Prot. 5868/74 CA). Such an agreement is currently being sought with an association of religious:

In 2012, the Congregation for the Doctrine of the Faith published a report very critical of the LCWR, which include nearly 80 % of some 50,000 women religious in the United States, accusing it of « radical feminism, » of doctrinal inaccuracies, of having lost the sense of the Church, of holding positions unacceptable in matters of sexuality, and of risking to « distort faith in Jesus and our loving Father [96]. » The religious replied that these were unfounded accusations, potentially destructive to the continuation of their mission. Since that time, negotiations are continuing between the Vatican delagate, Archbishop Peter Sartain and the member-groups of the Association[97].

In conclusion, we will hold that hierarchical and contentious-administrative recourses constitute a reality which effectively contributes to the respect and/or the restoration of justice in relation to religious. This justice which is internal to the Church is particularly important to our time, in which, at least in Europe, civil society has difficulty accepting the evangelical counsel of obedience.

Thus a few complaints of religious or their family, well founded or not, sometimes lead one to conclude that a religious institute has a sectarian way of working. We will discuss this issue in the next chapter, after having discussed the situation intersecting with sanctions relating to persons with charisms.


[1]Cf.  www.viereligieuse.fr/La-vie-religieuse-en-chiffres-dans-le-monde

[2] As opposed to religious in contemplative life, who are called nuns.

[3] These include the instructions below:

  • On 15 August 1969, the statement Venite Seorsum on contemplative life and enclosure of nuns of the Congregation for Religious and Secular Institutes,
  • On 2 February 1990, the statement Potissimum Institutioni, of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life,
  • On 2 February 1994, the statement « Congregavit nos in unum Christi amor » (Fraternal Life in Community),
  • On 25 March 1996, the post-synodal Apostolic Exhortation “Vita Consacrata,« 
  • On 13 May 1999, the statement on contemplative life and the enclosure of nuns Verbi Sponsa of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life,
  • On 29 June 2016, the Apostolic Constitution Vultum Dei Quaerere (Search for the Face of God)
  • On 11 May 2008, the statement Faciem Tuam, Dominates, Requiram (the service of authority and obedience)

[5] Acquaviva (Claudio S.I.) Industriae pro Superioribus eiusdem Societatis ad curandos animae morbos, Rome, 16 April 1600, quoted by Pope Francis on 22 December 2016 (Zenit www.ignaziana.org/accorgimenti.pdf)

[6] Zenit, 1 November 2016.

[7] Donough (Elizabeth Mc), « The protection of rights in Religious institutes », The Jurist, (1986) 164-204.

[8] Cf. c. 630 Superiors are to recognize the due freedom of their members regarding the sacrament of penance and direction of conscience, without prejudice, however, to the discipline of the institute.

[9] Cf. c. 654 By religious profession, members assume the observance of the three evangelical counsels by public vow, are consecrated to God through the ministry of the Church, and are incorporated into the institute with the rights and duties defined by law.

[10] Cf. c. 740 Members must live in a house or in a legitimately established community and must observe common life according to the norm of proper law, which also governs absences from the house or community.

[11] Paul VI, Evangelica testificato, AAS, LXIII (1971), p. 512-513, n° 28: conscience and obedience.

[12] Can. 617 — Superiors are to fulfill their function and exercise their power according to the norm of universal and proper law.

[13] Can. 618 — Superiors are to exercise their power, received from God through the ministry of the Church, in a spirit of service. Therefore, docile to the will of God in fulfilling their function, they are to govern their subjects as sons or daughters of God and, promoting the voluntary obedience of their subjects with reverence for the human person, they are to listen to them willingly and foster their common endeavor for the good of the institute and the Church, but without prejudice to the authority of superiors to decide and prescribe what must be done.

[14] Empela Ankonelle (Scholastique), L’identité de la vie consacrée face aux actuelles mutations socioculturelles en Afrique, Université du Latran, Corona Lateranensis 47, Rome 2011, p. 267 et 272 / 406 p.

[15] Rosinski (Michael) “The Due Process to be followed in the Administration of Discipline in Religious Institutes, according to the Code of Canon Law.” Thesis defended at Louvain on 31 May 2016. Analysis in Studia canonica, 51/1, 2017, p. 287-288.

[16] Alday (Josu Mirena) « Il senso di appartenensa al proprio istituto », in Vitcons 37 (2002) 166-179.

[17] Politi (Marco), Francis Among Wolves, French version, François parmi les loups, ed Philippe Rey, Paris 2015, p. 141-142/284.

[18] Harassment can be defined as repeated words and behaviors with the aim or effect of a deterioration of the living conditions of the victim. In French law, moral harassment at work is a reprehensible offense in the private sector as well as in the public sector, as the law organizes the protection of employees, public officials and trainees.

[19] Politi (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 122/284.

[20] Politi (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 117/284.

[21] Congregation for Institutes of Consecrated Life and Societies of Apostolic Life: Instruction of 11 May 2008, Faciem Tuam, Dominates, Requiram (the service of authority and obedience)

[22] Some canonists interviewed feel that the prohibition of external contacts without permission is illegal. Nevertheless Canonists without Borders has recommended that religious respect it until a letter of expulsion has been formally received, in which case the right to defend oneself seems to prevail over the duty of obedience.

[23] Information given to Canonists without borders in November 2017.

[24] https://www.avref.fr/  consulted on 14 December 2017

[25] Here is a document translated from the site of Avref on 30 June 2017:

You are the victim of a Community, of a movement, or a person who has taken authority over you:

  1. You who made a vow of chastity: You have known the isolation, the emotional rupture with your loved ones;
  2. You who made a vow of poverty: You have known the extortion, abandonment, intellectual and spiritual misery;
  3. You who made a vow of obedience: You have known submission, harassment, abuse of power,

In that case, react. Nothing is lost.

  • If you are still there, leave without a look back, rediscover your freedom.
  • If you left, you have been tough, you can rebuild, you must do so.

The AVREF welcomes you and helps you: identify yourself! Confidential support provided by families and former members of religious communities.

www.icsahome.com .

[26] www.icsahome.com

[27] http://gamaliel21suite.pagesperso-orange.fr

[28] www.eglise.catholique.fr/conference-des-eveques-de-france/cef/autres-services-et-instances/418017-derives-sectaires-dans-des-communautes-catholiques/

[29] www.viereligieuse.fr

[30] www.crc-canada.org/fr/conseil-international-canonistes-IUSG

[31] Note published by the Diocese of Evry: http://evry.catholique.fr/Service-Accueil-Mediation-pour-la and consulted on 3 March 2015;

[32]Today it consists of 9 members (2 laity, father and mother of the family, a secular priest, 2 male religious, 4 women religious) appointed by the Permanent Council of the episcopate by a mandate of three years. They are bound by the obligation of professional secrecy. […] The people believed to be, for themselves or for a relative, in a situation falling within the SAM can address a request for intervention to the […] Deputy Secretary General of the EFC […which…] will entrust the case to one, and often two, members of the SAM. It falls to the members of the SAM to which the case has been entrusted:

  • to assess the situation and hear all the persons involved in the conflict (complainant, superiors, those responsible within the community),
  • to open, when this is possible by way of mediation, paths of understanding and reconciliation,
  • to inform, as soon as they begin, the Bishop concerned and to transmit to him, at the end of the process, a report on what could be done through mediation, or to tell him that it could not succeed.

From the outset, the Bishops have held that are have heard the people who are concerned about what they perceive, from the inside or the outside, as deviant behavior in a particular community. They always ask to serve the dynamism of the Gospel, if necessary to report and correct what constitutes an obstacle.

[33] Javary (Christelle), « La médiation dans l’Église catholique de France : l’exemple du SAM (Service Accueil Médiation pour la vie religieuse et communautaire), mémoire d’IFOMENE 2008-2009.

[34] Cf. presentation in chapter 12.

[35] According to ASS (2915), p. 745, 2073 indults of departure were granted in 2015.

[36] Information given to Canonists without borders in 2017.

[37] www.eglise.catholique.fr/structure/cellule-pour-les-derives-sectaires-dans-des-communautes-catholiques/

[38] The Pontifical Commission Ecclesia Dei was instituted by John Paul II by a 2 July 1988 motu proprio, « The mission to collaborate with the Bishops, the dicasteries of the Roman Curia and the interested circles, in order to facilitate the full ecclesial communion of priests, seminarians, religious communities or of individual religious having had up to now connections with the Fraternity founded by Archbishop Lefebvre and who wish to remain united to the Successor of Peter in the Catholic Church ».

[39] Religious priests may be counted either among the clerics either among the religious.

[40] Ostilio (Francesco D’), Segnatura Apostolica in Dizionario degli Istituti di perfezione, volume VIII, Saba-Spirituali, sous la direction de Pelliccia (Guerrino) et Rocca (Giancarlo), Rome, Edizioni Paoline, p. 1236-249.

[41] ASS (1978), p. 625

[42] Ostilio (Francesco D’),  Segnatura Apostolica in Dizionario degli Istituti di perfezione, volume VIII, Saba-Spirituali, undr the direction of  Pelliccia (Guerrino) et Rocca (Giancarlo), Rome, Edizioni Paoline, p. 1236-249.

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

[44] Aegrotans non dimittimur sed curatur […] id exigit iustitia si soror N plures annos in commodum Instituti lavoravit: id exigit maxime caritas.

[45] Javier Canosa indicates the reference Prot 10997/76 CA, while JP Montini indicates the reference Prot 10977/79 CA for sentences of 27 October 1984 and from 1 July 1985 coram Ratzinger. To ensure a good consistency with the cases recorded in the same period, we believe that the most likely reference is Prot 10977/79 CA.

[46] ASS (2015), p. 745.

[47] Carballo (Mgr. José Rodriguez, ofm), « Les vœux religieux aujourd’hui » in Revue de Droit canonique, Strasbourg 2015, tome 65/1, p. 237.

[48] Sugawara (Prof. Yuji), « Separazione imposta ai membri dell’istituto religioso », Periodica 106 (2017), p. 177-189.

[49] Cf. Hervada (Javier), Code de droit canonique bilingue et annoté, op. cit. p.886.

[50]In the case Prot. 14997/83 CA, the religious had not renewed his vows, and was conidering himself as outside the institute; but his Congregation held otherwise, even though it resulted in an appeal by the ex-religious.

[51] See also c. 740 for the members of a society of apostolic life.

[52] Or c. 727-728 for the member of a society of apostolic life.

[53] Moral Carvajal (Sr. Delfina, O.P.) “Exclaustrazione imposta di un religioso. Applicazione pratica,” Periodica 106 (2017) 190-216.

[54] Prot 3671/72 CA ; Prot 7607/76 CA.

[55] Prot 10896/79 CA as indicated by F. d’Ostilio (Dizionario, op. cit., p. 1245) Or, more likely, Prot 10896/75 CA.

[56] Prot 7084/75 CA

[57] Prot 227/69 CA ; Prot 3356/72 CA ; Prot 10218/78 CA ; 16616/84 CA

[58] In case Prot 4064/73 CA, the religious was readmitted into his monastery. In case Prot 6277/75 CA, the Roman Congregation admitted a provisional exclaustration of three years and the religious withdrew his appeal.

[59] Ministerium Justitiae, op. cit. p. 255-274.

[60] Moral-Carvajal (Prof. Delfina Moral), « Exclaustrazione imposta di un religioso. Applicazione pratica ». Periodica 106 (2017), p. 190-216.

[61] Sugawara (Prof. Yuji), op. cit.

[62] Sister Dominique specified that unfortunately, exclaustrated religious are often left on their own by their congregations.

[63] Ruessmann (Madeleine), Exclaustrations, its nature and use according to the current law, Roma 1995, Editrice Pontifica Universita Gregoriana, 550 p.

[64] For example, the 1983 code had abolished the differences of law between religious and religious-scholars that prevailed between 1917 and 1983.

[65] Cf. Hervada (Javier), Code de droit canonique bilingue et annoté, op. cit. p. 621-622.

[66] Mboma (Georges usus) Le droit canon face aux défis des réalités africaines, Cas du renvoi d’un religieux. L’Harmattan, 2013, 96 p.

[67] Huels (John M.), « Unlawful Command by a Major Superior”, Roman Replies (1997), p. 53.

[68] cf. Comm 9 [1977] 53-61). Cf. VC 43.

[69] Prot. 30199/99 CA and Prot. 33358/02 CA

[70] Begus (Christian), Adnotationes in decreta, Apollinaris 2011 (44/2), p. 501, translated from Italian.

[71] The law considers a civil marriage to be a marriage, but does not recognize other types of union, such as a PACS in France or a registered partnership in Belgium.

[72] Prot 150/70 CA, cited by Lobina, ME (1973) 1-4, p. 313

[73] On 2 January 1984, it was replaced with the Commission for the Interpretation of the Decrees of the Second Vatican Council.

[74]AAS 78 (1986), p. 1323.

[75] Prot 8031/76 CA ; 9690/77 CA ; 10218/78 CA ; 14997/83 CA ; 15721/83 CA…

[76] Prot 150/70 CA ; 2089/71 CA ; 2848/72 CA ; 8474/76 CA ; 9242/77 CA ; 12618/80 CA ; 13557/81 CA…

[77] Prot. 9993/78 CA.

[78] Prot 9498/77 CA ; 8984/77 CA

[79] Prot 3671/72 CA ; 10460/78 CA ; 11390/79 CA ; 11391/79 CA ; 15721/83 CA ; ; coram Sabattani, 23/1/88, registration number not indicated, cf. ASS (1988), p. 1405.

[80] Ministerium Justitiae, op. cit. p. 314.

[81] The Jurist, 73 (2013):1, p. 222-227

[82] Ministerium Justitiae, op. cit. p. 255-274.

[83] “Exclaustration and Social Security. Pension Plan, Roman Replies (2006), p. 56-57.

[84] Congregation for Religious and Secular Institutes, Declaration on the aid to be provided to those who leave their institutes, 25 January 1974, n. 5, Enchiridion Vaticanum 5/1-12.

[85] De Paolis (V.), La Vita consacrata nella chiesa, Venezia 2010, 590 p.

[86] Cf. Coulombel, (P.) « Le droit privé français devant le fait religieux depuis la séparation des Églises et de l’Etat », Rev. trim. dr. civil 1956, p. 1, n° 3 and 15.

[87] Boinot (Patrick), « Vœux religieux et relations de travail », » in Revue de Droit canonique, Strasbourg 2015, tome 65/1, p. 143-163.

[88] The recourse was accepted in case Prot 10997/79 CA, against a decision of withdrawal of the office of teacher in a Pontifical Faculty for presumed scientific immaturity. By decision of 27 October 1984, five years after the filing of the appeal, the religious was reinstated in his position as a teacher.

[89] The recourse Prot 1063/69 CA was denied, while recourse Prot. 2207/71 CA was abandoned by the petitioner.

[90] ASS (2015), p. 745.

[91] The Pontifical Council for Legislative Texts, Prot 15389/2016 in Archiv für Kirchenrecht Latolisches No. 184/1 (2015), p. 155-156.

[92] Prot 3672/72 CA ; 27406/96 CA ; 33121/02 CA ; 37162/05 CA

[93] ASS (1987), p. 1292 and 1293.

[94] Prot 324/69 CA cited by D’Ostilio, op. cit. p. 1239.

[95] Roman Replies (2012) 21

[96] Congregation for the Doctrine of the Faith, Doctrinal Assesment of the Leadership Conference of Women Religious, 18/04/2012.

[97] Politi (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 121/284.

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.

  1. 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 5th 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 15th 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.

Justice for the Laity

Chapter 4: Justice for the Laity

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

At the end of 2014, the number of Catholics in the world was estimated at 1.27 billion[1]. In this regard, the dogmatic Constitution of the Church Lumen Gentium recalled the principle of obedience, which has startled so many of our contemporaries in the Western world, because of their exacerbated freedom of the individual, which has the tendency to oppose individual freedom and authority[2].

The laity should, as all Christians, promptly accept in Christian obedience decisions of their spiritual shepherds, since they are representatives of Christ as well as teachers and rulers in the Church[3].

At the same time, Cardinal Kasper contends that the Second Vatican Council has flipped the situation on its head, by ceasing to consider the laity « as the extended arm of the clergy [4] » to the extent that they obtained their mission from Christ Himself, by virtue of their baptism, not a mandate of the clergy[5]. Some bishops make a wide appeal to the laity, such as the bishop of Dallas[6]:

I consulted them on all the pastoral decisions which I was facing. (…) I wanted to ensure that the priests are what they are supposed to be: sacramentals and teachers of the faith. And I wanted to leave the administration to persons who were more competent than them, the laity[7]

In 1983, the Code of Canon Law introduced a new chapter on the rights and obligations of the faithful in general and of the laity in particular. Canons 208 to 231 constitute an undeniable novelty in relation to the 1917 Code, and they appear to have been relatively well received by both the hierarchy and the faithful. However, the receipt of these provisions is not free of tensions, as evidenced by Cardinal Kasper:

I am concerned especially by […] the growing distance between the hierarchical vision « at the top » and the vision of the members of the Church « at the bottom, » which is already almost a de facto schism. […] The consciousness of the laity is one of the pleasing fruits of the Second Vatican Council; but after the Second Vatican Council it has also become the source of much misunderstanding and of new controversies[8].

Testimony gathered in Dakar[9]  shows that most of the Catholic faithful, including the best trained, are not aware of the existence of administrative justice in the Church. In cases of conflict, many think that if they address their case to the ecclesiastical hierarchy rather than to the civil courts, they are likely to be harmed because there will be nobody to defend their point of view.

In order to appreciate the role of administrative justice in the Church for the laity, we have extracted from our database 153 appeals from the laity[10], or 27% of the 742 recourses for which the status of the petitioner was specified. We have added 27 appeals of decrees of the Pontifical Council for the Laity [11], giving us a sample of 180 recourses registered by the Supreme Tribunal concerning the laity that we analyze briefly in this chapter—without pretending to write a treatise on law and jurisprudence, which would require thousands of pages.

Contrary to what might have been expected, it is not the Pontifical Council for the Laity whose decisions are the most contested by the laity, but the Congregation for Clergy[12].

Here are also the main themes concerning contentious cases regarding the laity, which are subjects of contentious administrative recourse.

By grouping dismissals and transfers into a rubric relating to specific decrees for the laity, we get fivemajor areas as shown in the plan below:

  • Reshaping parishes;
  • The reduction of churches to a profane use which is not improper;
  • Specific decrees concerning the laity;
  • Associations of the faithful;
  • Other cases.
  1. Reshaping Parishes

Urbanization, mobility and the secularization of society impel the Church to adapt, not looking to the past, but rather seeking new synodal solutions including the reorganization of parishes. The applicable law is described mainly in canons 515 to 520 on « The Internal Organization of the Particular Churches.”

In her thesis[13], Elisabeth Abbal shows that between 1980 and 2015, all the dioceses of France have reshaped their territory by creating, regrouping, amending or suppressing parishes and parish groupings. The situation varies widely from one diocese to another. In Poitiers, for example, many parishes have been regrouped together. In Strasbourg, none of the 567 parishes has been suppressed, but communities of parishes were created, allowing a parish priest to be responsible for several parishes simultaneously. In Tulle, there has not been an ordination of young priests for 20 years; as a result, the parishes were regrouped into 22 church groups, to adapt the actual situation to the number of parish priests able to take on the curial role, and for the future, to support the dynamism of pastoral and missionary teams by local priestly fraternities.

From a survey of 53 practicing Catholics[14], Louisa Plouchart has found that 66% of the parishioners are not at all disturbed by the reorganizations, and take part in the life of their new parish. We can also deduce that a third of the parishioners are a little upset. To the extent that the faithful are attached to their parish, it results in tensions, some of which lead to hierarchical and contentious recourses.

In addition to canons 50, 51, 120 to 123, 127 and 166, the law applicable to groupings of parishes is mainly derived from canon 515 § 2:

Canon 515 §2. It is only for the diocesan bishop to erect, suppress, or alter parishes. He is neither to erect, suppress, nor alter notably parishes, unless he has heard the presbyteral council.

When a parish is modified, there may be various recourses, emanating from the parish priest (cf. Prot 43915/10 CA) but also from the laity who attend the parish. They are in general addressed to the Congregation for the Clergy, which finds « various difficulties in recent years.” Thanks to the resulting jurisprudence, on April 30, 2013 the Congregation published a series of recommendations to the Bishops for the modification of parishes and the closure of parish churches, of which here are some excerpts:

It is necessary to distinguish clearly the three canonical procedures: 1) change of parishes, 2) of relegation of churches to a profane use and 3) of the alienation of the buildings. […] Each procedure has its own rules which must be followed correctly and with care. There is no procedure to close a church temporarily, for example for repairs. It is the same to limit its use, for example by removing the Sunday Mass in the measure where the Church remains open to the faithful. Each type of Decision (amendment of parish, reduction of a church to a profane use, assignment of goods), must be the subject of a written decree separated, duly communicated at the time of its adoption[15].

Sometimes the decision of the Congregation for the Clergy rejects the recourse, considering that the bishop has not violated in law, neither in substance nor in procedure[16], and petitioners sometimes submit contentious administrative recourses that are rejected in limine, not admitted to discussion, or admitted to discussion and then accepted or rejected.

On 20 June 1992, the College examined the recourse of two parishioners, considering that they were justified in submitting it, since the decree of the Congregation for the Clergy did not meet canons 515-2 and 1222-2, and finally deciding that the bishop was to restore to the parish church to its previous status[17].

 

Among the disputes handled by the Apostolic Signatura, some relate to parishes entrusted to religious, whose status is modified by the bishop without prior agreement with the religious in question. The Congregation for the Clergy also cites difficulties in connection with the ownership of assets of modified parishes or dioceses.

The Dioceses of Barbastro-Monzon[18] et de Lerida[19] disagree about the property of the ecclesiastical heritage of Frange d’Aragon[20]  in a dispute characterized by nationalistic tensions between Catalans and Aragonese, following changes to the borders between the dioceses. Several books[21] and internet sites[22]  describe the epic civil and canonical litigation which resulted[23].

The largest number of appeals, however, concern the fate of churches in suppressed parishes, which leads us to address the question of the reduction of churches to a profane use that is not improper.

  1. The Reduction of Churches to Profane Use

In Africa, just as in the suburbs of large cities, the Church seeks to build new churches to meet the needs of the faithful who are increasing; while in Europe, many churches are empty, in particular in rural areas.

In 2007 an article published in the French press[24]  gave rise to an awareness of the risk of the destruction of churches.  It prompted 25,000 signatures to be collected, while the French observatory of religious heritage[25]  estimated the French religious heritage to include approximately 100,000 churches and cultural monuments.

In France, every year about 20 parish churches are destroyed, such as the chapel of Saint-Bernard of Clairmarais, (diocese of Arras); and the funeral chapel of the Counts de La Hitte, in the Château d’Esclignac (in Montfort, diocese of Auch).

With regard to the current uses of churches reduced to profane use, they include social enterprises like the Farlab of Lille[26], a center for the disabled in Oran, columbaria (grave sites), restaurants, etc. There are also churches reduced to profane use, for which the proper-use clause was respected by the first purchaser, but the building has been transmitted to a new buyer who has devoted it to a improper use such as a bar or dance hall.

Contracts between dioceses and the buyers of churches are generally covered by a civil law contract, which should address the fate of the church after the first purchaser.

2.1. Applicable Law

The Code of Canon Law provides the definition of a church[27], recalling the rites of dedication or blessing, which now prohibit profane usage of the building[28].

Apart from instances of desecration which necessitate a new dedication or blessing, there are two types of cases in which a church can be reduced to a profane use that is not unseemly, thus losing its sacred character[29].

First, there is the case provided for by canon 1222 §1, regarding churches which have been damaged and cannot be repaired. In many countries, the owner of the church is usually the parish or the diocese, and the reason for the destruction is financial. Before such a decision is taken, the Bishop must seek all possible solutions, such as selling land and other buildings, appealing to sponsors, or mobilizing his own resources. Yet, even though the Church in Germany spends more than 500 million Euros per year for church repairs, it cannot preserve them all, and some are sold[30]. It is the same in the United States[31].

In the case of France, it is otherwise since there are approximately 45,000 parish churches, of which 35% were built in the nineteenth century[32], and for the clear majority of these, their property and its maintenance are the responsibility of the local government.  Any decision regarding their destruction devolves to the mayor when the Church is not classified as a historical monument, which is the case for most of them. Similarly, considering the increasing cost of their maintenance for a decreasing number of faithful, the mayors sometimes choose to shut them down. About 30 churches have already been destroyed in France, and nearly 10,000 churches are threatened with destruction. The bishops are naturally consulted, to take charge of part of the work of restoration, but often they decline this option as beyond their means. The many disputes that occur[33]  are then mostly brought before the civil administrative courts, which produce abundant jurisprudence and inspired the circular issued by the French Ministry of the Interior on 29 July 2011[34], incorporating the decision of the Council of State on 19 July 2011. Regarding civil law, we will not address this problem as it is beyond the scope of our study.

It is different for those churches which are not doomed to destruction, and for which the decision on reduction to a profane use comes from the Local Ordinary[35]. This type of case, which is governed by canon 1222 §2, is possible when five conditions are met:

1) Serious reasons exist;

2) The Presbyteral Council has been heard;

3) Consent has been received from those who have legitimate rights on the building;

4) There is the absence of damage to the good of souls;

5) There are minimum guarantees on the building’s future use, which should be suitable.

Here is an example of a case where the last condition was not respected:

On 21 April 2016, the Diocese of Rodez sold for a symbolic one Euro the church of Fontvernes and its 14 acres, to a professional who wanted to transfer there his organ manufacturing business. In November 2017, he sought to sell the church for 50 000 €, on the grounds that the company suffered a decline in orders, and this money is needed to lay off his workers[36].

Law is constantly evolving, namely when it comes to relics. As a matter of fact, the Congregation for the Causes of Saints has published an Instruction about the « Relics in the Church: authenticity and conservation » which says that trade or sale of relics, their exhibition in secular or unauthorized places are « absolutely prohibited »[37]. Following the example of the Gregorian University[38] and the Canon Law Society of America[39], the digital library of Canonists without Borders[40]   strives to make the new sources of the Roman Curia easily accessible to the canonists.

2.2. Difficulties and Recourses

The decision of the bishop is an administrative decision, subject to administrative appeal. When there is a dispute[41], the Congregation for the Clergy is competent under Article 98 of Pastor Bonus and it accepts or sometimes rejects the recourse of parishioners, taking into account whether the bishop has violated a law in substance or procedure [42].

Its decisions are subject to appeal to the Apostolic Signatura, and this is not only theoretical, since many contentious administrative recourses are presented to the Supreme Tribunal. This Tribunal has published some sentences concerning demolition[43], repair[44], or reduction of a church to profane use, for example in cases of suppression or the regrouping of parishes[45]. These sentences have been the subject of analysis on the part of Mgr. Frans Daneels, in 1998[46] then in 2010[47], as well as Mgr. Gian-Paolo Montini in 2000[48], Nicholas Schöch in 2007[49], and Javier Canosa in 2011[50].

In his analysis of ‘major judgments » of administrative case law, Javier Canosa refers in particular to a 20 June 1992 sentence which recognizes for the first time that the faithful who are members of a parish community have the possibility to validly make recourse relating to a decision affecting the parish (Prot 22036/90 CA).

The number of contentious recourses filed with the Tribunal of the Apostolic Signatura, for reductions of churches to profane use, is in sharp increase since the year 2011. This is a sign that disputes are occurring more and more frequently between of the faithful who wish to maintain a church as a place of worship, and a bishop who opposes it. The reason for this lies in the fact that the number of churches reduced to profane use is increasing dramatically in developed regions where the number of faithful and clergy decreases.

Number of known contentious recourses by year of registration:
Years 1990-1999 2000-2009 2010-2013
Number of cases 5 4 16
Source = Database      

Unfortunately, the sentences published are few in number and old, and so it is necessary to resort to the comments of members of the Supreme Tribunal in order to get an accurate view of the law today, informed by jurisprudence, as we propose below in a synthetic manner:

  • A layperson must demonstrate that he is subject to harm in order for his appeal to be accepted[51];
  • The definitive closure of a church is equivalent to its reduction to profane use, even if the bishop has not made a final decision as to its later use[52];
  • The application of canon 1222 §2 requires that all the conditions imposed are met[53]. The absence of negative impact on the good of souls is not a sufficient reason[54];
  • The lack of priests or the suppression of a parish does not constitute a sufficiently serious reason to reduce a church to a profane use, because it has already happened in the history that in the absence of a priest, pious laypersons may preserve a church as a sacred building in witness to the Catholic faith[55];
  • The serious reasons referred to should be present at the time of the decree and not only represent fears for the future;
  • In contrast, the Supreme Tribunal has accepted as a serious reason the inability of the parishioners to maintain a church;
  • When a church has suffered damage and must be repaired, but financial reasons justify a different course of action, yet moral impossibility cannot be proven, it is appropriate to apply canon 1222, § 2, knowing that the bishop has the authority to decide whether the financial difficulty is a serious reason, after having heard the presbyteral council on the matter;
  • A Diocese’s financial exigency does not constitute a serious enough reason to sell a Church which would belong to its heritage[56].
  • It is necessary to undertake an appropriate study of the state of the building, the cost of repairs, and the possibility of finding funds, before the bishop compels a parish or religious institute to repair a church which is not a parish church;
  • Concerning the Presbyteral Council, its hearing should focus explicitly on the reduction to profane use of a church and not only on the supression of parishes, making a sharp distinction between the two decisions[57];
  • The altar, and other objects involved in worship, do not lose their sacred character[58] with the reduction of a church to a profane use which is not improper. They must therefore be transported elsewhere.

There is also jurisprudence about the ownership of the goods of churches reduced to a profane use:

When a church had been reduced to a profane use, one of the parties reported the existence of a previous donation of the land on which the church was built, with a moral clause specifying that if the church was to be sold, the field should return to the family and its descendants. The party lost its appeal, because the clause was not included explicitly in the contract, since it was written there that the land was free of easements[59].

Another case specified that a title of ownership or a donation did not necessarily confer rights on a parish church, unless a valid juridic act specified explicitly that the donation or the provision was conditioned to a determined use of this church[60].

Mgr. Daneels concluded his analysis of the case law in these terms:

It appears, finally, that the Congregation for the Clergy has reformed on several occasions the decisions of diocesan bishops that reduced a parish to a profane, non-improper use, but it is not easy for a bishop to obtain from the Signatura a decision invalidating that of the Congregation. The supression of a parish does not automatically imply the reduction of the parish church to profane use. But it also appears that it is not easy for parishioners to demonstrate before the Signatura the illegitimacy of a decision of the Congregation for the Clergy, concerning a decision of the bishop[61].

In any event, here is proof of the action of the Supreme Tribunal in this area.

A group of American parishioners presented a hierarchical recourse against a 12 June 2007 decision of their bishop concerning the reduction of a church to a profane use. The Congregation for the Clergy initially rejected the recourse, on the grounds that it emanated from a group of persons not having juridic personality to take such recourse. Once the recourse was presented again by persons intuitu personae, the Congregation convalidated the decree of the bishop and the parishioners filed a contentious administrative recourse. On 21 May 2011, the Supreme Tribunal found that there had been a violation of the law in the decree of the Congregation for Clergy of 5 August 2008, because the Bishop had not cited a grave reason justifying the reduction of this church to profane use[62]. We should point out that the process continued for 4 ½ years, until the final decision on 18 November 2011.

 

We have seen that in the field of parishes and churches, the administrative justice of the Church has played a role in the resolution of a conflict, by respecting canon law.

 

  1. Particular Decrees for the Laity

 

To be more precise, we should include in our title not only the laity but also the non-baptized, such as precatechumens and catechumens, as well as non-Catholic Christians with regard to their access to baptism and the other sacraments.

  • Admission to the Sacraments

Canon law lists impediments for admission to the catechumenate (cf. Canon 788[63] and particular law[64]) and for baptism, conditioning access to the other sacraments (cf. canons 843[65]  and 865[66]).

It is important to identify and eventually resolve these potential impediments as early as possible during the preparation for baptism, to avoid last-minute setbacks as sometimes happens. One of the potential impediments frequently encountered is the irregular marital status of a catechumen or his or her spouse, but there are a number of canonical solutions to resolve some cases of this type, of which persons responsible for the catechumenate are not always aware[67]. This can result in unjustified refusal for admission to the catechumenate, refusal of baptism and other sacraments[68], as we can see in the following examples:

A few weeks before his baptism, a man was denied baptism because his Catholic spouse had been married to a man who left her after a few weeks, and her situation had not been regularized. During the last interview before the decisive call for his baptism, a catechumen declares that he wants to marry, but does not want children. Without any dialogue, the parish priest replied that in this case, baptism is not possible and the woman was stopped in her path to Christ and the Church.

The question then is whether the refusal is or is not subject to recourse. We have met with such a case where the application has resulted:

Without understanding the reason, a precatechumen was denied, on several occasions, access to the catechumenate.  He sent an appeal to the Pope, which was retured to the local level by the Roman Curia, which addressed the problem and decided to admit him to the catechumenate[69].

In the present case, there was no particular written administrative act, but procrastination by those involved, which could have been transformed into refusal at the end of three months of silence on their part. In all cases, the denial of access to the catechumenate or to a sacrament by a particular administrative act must be fairly rare, because we have not found contentious-administrative case law on this issue.

  • The laity employed by the Church

The Church employs a growing number of lay employees or volunteers for varied works of the apostolate, teaching and service. Sometimes, it refuses to give the work to competent people who seek to be hired, or it takes the work away from people who were hired, and this can lead to misunderstandings and conflicts.

For many teachers (clerics or lay persons), a general feeling remains that their rights are not sufficiently protected. For many of them, the possibility which is offered to them to defend themselves by an administrative appeal does not appear satisfactory. In this regard, they bemoan the absence of administrative tribunals at the national level[70].

 

Outside of Catholic education, one encounters situations of this type in dioceses:

Following a change of Bishop, the Portuguese employee of a diocese experienced a situation that his friends characterized as moral harassment. He made known his discomfort to the bishop, who did not respond. Not wanting to turn to the civil courts, he asked for a conventional break in his contract, thus losing all his rights. Today, he has failed to recover, while one of the priests who defended him was summoned by his bishop because he dared to talk about his case, and five other employees of the Diocese were also forced to leave their employment.

Very few among the laity know canon law, and so they appeal only exceptionally to the administrative justice of the Church in making, in good time, hierarchical recourse to the Roman Curia.

 

When the Council for the Laity has not resolved them, the Apostolic Signatura must address the administrative-contentious recourses, sometimes ruling in favor of the petitioners against the Dicastery concerned. These recourses mainly concern the following topics:

  • Taking away the position of a teacher or university rector[71];
  • Refusal of admission to sacred orders[72];
  • Dismissal from the physical plant of St. Peter’s Basilica[73];
  • Removal from the job of Defender of the Bond[74];
  • Expulsion from a house belonging to the Church[75];
  • Suspension of a married deacon[76];
  • Removal from the position of seminary professor[77] ;
  • Expulsion from a parish church.

Here is an example:

In a case heard in 1987, four lay people of the United States were expelled from their parish after denouncing liturgical abuses and doctrinal errors of their parish priest. The Apostolic Signatura remanded the recourse to the Dicasteries it considered to be concerned, namely the Council of the Laity and the Congregation for the Doctrine of the Faith[78]. Later on[79], the Tribunal did not accept on appeal a recourse against a decision of the Congregation for Divine Worship and the Discipline of the Sacraments, because the Dicastery justified its refusal by the fact that the parishioners were fomenting disorder, protesting loudly against the style of the new pastor, for which reason the recourse appeared to be without foundation.

In another area, it should be noted that recourses relating to the work of the employees and former employees of the Holy See against the acts committed by the competent service are processed by the Labor Office of the Apostolic See, which handles arbitrations that are not subject to appeal to the Supreme Tribunal[80].

  1. Associations of the Faithful

« “Lay associations have always been present throughout the Church’s history”, Saint John Paul II reminded us[81], yet it took a dispute between a Bishop of Argentina and the Society of Saint Vincent de Paul in 1921, to lead the Sacred Congregation of the Second Vatican Council to overcome a narrow vision of the 1917 Code and recognize

“…the legitimacy of the autonomy of the laity in constituting and directing lay associations, distinguishing clearly on this occasion ecclesiastical associations from lay associations[82].

The Second Vatican Council effectively quoted the resolutio Corrienten[83]  in the 1965 Decree on the Apostolate of the Laity [84], when it evoked in these terms the right the laity to form associations, to lead them, and to join those which already exist:

Maintaining the proper relationship to Church authorities, the laity have the right to found and control such associations and to join those already existing[85].

In 1983, the Code affirms this right of the faithful and then, in 1988, the post-synodal Apostolic Exhortation Christifideles Laici showed appreciation for the path already travelled. Similarly, in 2011 Pope Benedict XVI recalled:

The obvious opening to the contribution of the laity, and the declaration of unequivocal « ecclesial criteria » by Christifideles Laici, have helped to ripen « a deep awareness of the charismatic dimension of the Church, [which has] lead us to appreciate and value both the more simple charisms that provide Divine Providence to people, and those that generate a great fruitfulness that is spiritual, educational, and missionary in nature[86].

Pope Francis has gone in the same direction:

Let us thank the Lord for the abundant fruits and for the many challenges of those years. Let us remember, for example, the new era which, alongside the lay associations with a long and worthy history, has seen the rise of many movements and new communities with great missionary zeal; movements whose development you have followed with care, and assisted in the delicate phase of the legal recognition of their Statutes[87].

Yet the number of associations of the faithful that have been juridically recognized is low, as Olivier Echappé recalled:

The observation of the ecclesial reality of our country [France] is based on a finding that is contradictory to the extraordinary flowering of the associative model in the Church, as elsewhere in the whole of society, and the remarkable success of the law of 1 July 1901, whereas correlatively the episcopal chanceries are not overburdened with the weight of requests for recognitio or probatio.[88]

Based on publications of the Pontifical Council for the Laity[89] and some dioceses, the author believes that in 2011 the number of associations of the faithful per Catholic[90] is approximately one thousand times less than the number of civil associations per inhabitant[91].

  Cath.

1

Can Ass
2.
Ass. / faith.

3

M.
hab.

4.

Civil

Ass.

5

Ass /
M. hab.

6

can Ass / civ Ass

7

International Associations 1 000 122 0,12 60,00 9 910 165 1 354
France 36,00 78 2,17 60,00 983 803 16 397 7 568
Diocese of Paris 1,33 11 8,29 2,21 71 222 32 208 3 885
New York / United States 0,45 19 41,85 312,00 1 900 000 6 090 146
Diocese of Créteil 0,79 3 3,81 1,31 39 000 29 751 7 800
Diocese of Saint Denis 0,90 1 1,11 1,51 45 000 29 871 27 000
Diocese of Nancy 0,44 71 162,10 0,73 11 616 15 912 98

 

Even though the results should be accepted with caution, the difference is enormous, and one can question whether canon law constitutes an obstacle to the creation of associations of the faithful. In 1985, then-Cardinal Ratzinger reflected in this say on the new movements:

It is certain that these movements also pose some problems, and to a degree some dangers, but the same goes for everything that is alive. […] This is not the result of the planning by a pastoral administration, but rather it has arisen by itself. In this regard, administrative bodies – just when they want to be very open to progress – do not know what to do with it; it does not fit with their ideas. Thus tensions are created when it comes to inserting these movements into the current structure of institutions[92].

In 1983, the Code of Canon Law incorporated the principles laid down by the decree of the Second Vatican Council on the Apostolate of the Laity, and juridically structured them with canons 215ff:

Can. 215 The Christian faithful are at liberty freely to found and direct associations for purposes of charity or piety or for the promotion of the Christian vocation in the world and to hold meetings for the common pursuit of these purposes[93].

Once established as per canons 298 and 299 §1, these associations become associations of fact, but they are allowed in the Church only in accord with one of the canons below:

  1. Canon 299 §3[94], for private associations whose statutes are recognized by competent authority (recognitio);
  2. Canon 322, for associations with legal personality (probatio)[95];
  3. Canons 298 §2[96] and 299 §2[97], for associations praised and recommended by the Church;
  4. Canon 300[98] for private associations with the word Catholic in their name;
  5. Canon 301§3[99] for public associations of the faithful;
  6. Canon 302[100] for clerical associations[101].

At the end of the 1987 Ordinary Synod of Bishops, Pope John Paul II specified what criteria the associations to be recognized by the Church must follow, without making a distinction between the six types of recognition just mentioned[102].

It is always from the perspective of the Church’s communion and mission, and not in opposition to the freedom to associate, that one understands the necessity of having clear and definite criteria for discerning and recognizing such lay groups, also called « Criteria of Ecclesiality. » The following basic criteria might be helpful in evaluating an association of the lay faithful in the Church:

  • The primacy given to the call of every Christian to holiness.
  • The responsibility of professing the Catholic faith.
  • The witness to a strong and authentic communion in filial relationship to the Pope.
  • Conformity to and participation in the Church’s apostolic goals.
  • A commitment to a presence in human society, which in light of the Church’s social doctrine, places it at the service of the total dignity of the person.

The fundamental criteria mentioned at this time find their verification in the actual fruits that various group forms show in their organizational life and the works they perform, such as: the renewed appreciation for prayer, contemplation, liturgical and sacramental life, the reawakening of vocations to Christian marriage, the ministerial priesthood and the consecrated life; a readiness to participate in programmes and Church activities at the local, national and international levels; a commitment to catechesis and a capacity for teaching and forming Christians; a desire to be present as Christians in various settings of social life and the creation and awakening of charitable, cultural and spiritual works; the spirit of detachment and evangelical poverty leading to a greater generosity in charity towards all; conversion to the Christian life or the return to Church communion of those baptized members who have fallen away from the faith.

Since then Pope Francis has several times referred to the criteria of ecclesiality[103], and his words were widely commented on. Still, one of the main difficulties encountered by associations of the faithful concerns their recognition by the Church and their acquisition of legal personality. In the absence of rules for the application of the criteria of ecclesiality for the different levels of recognition[104], there is in fact a definite inconsistency in interpretations by canonists:

  • On the one hand, Cardinal Lluis Martinez Sistach[105] considered that the recognition of the statute includes subjective criteria, such as utility, to avoid the dispersion of forces and the duplication of associations having similar aims;
  • Without going so far, L. Navarro[106] considered that the recognitio is related to the verification of the statutes, but also to the analysis of other sources of information to identify the effective reality of the association. Roch Pagé held the same view[107];
  • On the contrary, S. Pettinano spoke of a right to recognition[108], while Feliciani wrote: ‘[….the ministerial intervention] can be considered not as a discretionary decision, but as a required action, in the sense that it is limited to the statement that, in the examination of the structures of the association, its resources and its goals, there is nothing contrary to the faith, to the discipline and integrity of customs. […] On the reasons for pastoral opportunity, it is difficult to reconcile with the right of association recognized to the faithful[109]”;
  • Finally, canonists such as P.A. Bonnet[110] have recognized that there may be conflict and administrative appeal.

A similar difficulty existed for the approval of translations of liturgical books, and so Pope Francis promulgated the Apostolic Letter Principum Magnum, amending canon 838 of the Code of Canon Law. In the absence of specific criteria, the Prefect of the Congregation for Divine Worship felt that there was no fundamental difference as to the role of the Apostolic See, between the actual domain of the recognitio and the confirmatio, and so the Holy Father had to require a different treatment of reports. Today we can hope that a similar motu proprio similar will aid in distinguishing the various modes of recognition of associations of the faithful.

In the absence of such specifics, there are sometimes situations where a bishop arbitrarily defers the recognition, as we can see in the example below:

A year after having been elected, moderators of an association of the faithful with 8,000 members asked to be received by the new bishop of the Diocese where their seat is located, « to show their approach to the path to recognition.” On 13 July 2016, they received a letter from the Vicar General: « Mgr. … asked me to let you know that, after reflection, it does not seem appropriate to give you an appointment because the conditions for recognition are not met in the light of information he has in his possession. He assures you of his prayers.” A canonist could question the respect for the rights of the faithful: the right to receive the assistance of pastors (c. 203), the right to recognition of their association (recognitio) and to its legal personality (probatio) (c. 300[111] and c.322-§1) when it meets the criteria of ecclesiality, the right to a good reputation and that of their members (c.220) and the right to defend themselves (c. 221), since the information is known to the bishop but not to the moderators, and it may very well be the result of slander.

 

The absence of canonical recognition of an association may lead to a trial in civil courts, instead of the issue being resolved by canonical administrative justice, as we can see in the example below:

In 1980 in Paris, the Archdiocese of Paris signed a convention of 17 years with the Association of Cultural Charity of the Croatian Mission (ABCMC), entrusting it with the use of Saint-Cyrille-Saint-Méthode Church. Over time, internal tensions mounted around the material issues such that in 2007, the Convention was not renewed.  The association, however, did not accept this decision, and continued to occupy the premises, celebrating, among other things, Masses in Croatian, and catechizing children. The Archdiocese of Paris sued the association in civil court and obtained several decisions from the civil justice system to make the association leave the premises. However, a group of Croatian parishioners rebelled, and protested in the streets, saying: « We are appalled, disappointed and shocked that our Catholic brethren behave like this toward other Catholics […] At a time when churches are being closed for lack of parishioners, or lack of maintenance, some Catholics who have rebuilt a church with their own money and have kept it open, are being expelled like dirt by their Catholic brethren. It is unacceptable. » For its part, the parish priest of the parish where the Church is located said he was ready to accept the Catholic Croats, but not their association[112].

 

Even if the association is recognized, we can expect that the interventions of the bishop will probably cause conflicts:

“Agape[113]”, a recognized private association of the faithful under the responsibility of the Bishop, holds inner-healing sessions in which tens of thousands of people are involved with great benefit. Holding opinions different from those of his predecessor, the new bishop sought to reestablish the association on a new base. A doctor, facilitator and training-session founder was given an ultimatum to cease activities with a prohibition of residence in town « without any reason, » according to the press[114].

 

In Rome, the Pontifical Council for the Laity regularly receives recourses, as it indicates each year in the following manner in its activity reports:

The Pontifical Council for the Laity has resolved the controversies submitted for its consideration, by associations of the faithful, with administrative recourses[115].

But not all the controversies are resolved by the Pontifical Council, since the Supreme Tribunal also must be involved in certain contentious administrative recourses relating to associations, including those relating to:

  • their public or private character (Prot. 23966/93/CA);
  • the possibility of making recourse while legal capacity has not been recognized (Prot. 17445/ 85 CA and prot. 17914/86 CA) [116];
  • their constitution and the designation of their moderators (Prot. 32943/01 CA, Prot. 35378/03 CA)
  • their suppression (Prot. 20012/88, Prot. 37399/05 CA)

 

One can wonder about the fact that no published decision is based on the application of the criteria of ecclesiality for the recognition of associations. Maybe there are unpublished cases, or even insufficiently detailed published cases which the author can collect on this topic?

Some recourses have been filed and rejected in limine, for lack of legitimacy of the petitioner:

The Council for the Laity rejected the hierarchical recourse of a group of American lay faithful against a decree of their bishop, because of the lack of legitimacy of the petitioner[117]. After several exchanges, the Pontifical Council for the Interpretation of Legislative Texts proposed a solution on 29 April 1987, with an interpretion of canon 299 §3:

  1. – Can a group of the faithful which does not have legal personality, nor even recognition as per c. 299, § 3, legitimately introduce a hierarchical recourse against a decree of their diocesan bishop?
  2. – No, as a group; yes, as a member of the faithful who act separately or in common, provided that they have really suffered injury. For the estimation of this injury, it is necessary that the judge enjoys appropriate discretion.

Some other recourses have been rejected in limine because the administrative act preventing the recognition did not have the character of a particular administrative act:

Tribunal against a letter of the Cardinal Prefect of the Congregation for Bishops, addressed to the Bishop of Lincoln, confirming the legality of a decision of the latter with, under certain conditions, a prohibition that became an excommunication of members of several diocesan associations, including the association « Call to Action Nebraska.” The Bishop accused them of holding views contrary to Catholic doctrine, including the marriage of priests and the ordination of women. The Secretary of the Supreme Tribunal replied that the Tribunal was not competent to deal with such an appeal, inasmuch as Article 123 of Pastor Bonus refers to specific decrees promulgated or confirmed by a Dicastery of the Roman Curia, which is not the case for a general diocesan decree or a clarification by a Dicastery concerning the legality of this Act[118].

 

Subject to information to the contrary, therefore, it does not appear that ecclesiastical administrative justice has played its full role in clarifying the recognition of private associations of the faithful, as was the case in 1921 with the resolutio Corrientes.

  1. Other Substantive Reasons for Recourse

There are many other, less common subjects of recourse, which it is not possible to relate in detail.

In addition to the case of employees of Catholic associations, mentioned in the introductory chapter, we may cite the case of hospital or military chaplains, as well as employees of the Diocesan curias who are sometimes fired.

A military man, promoted to vice-chancellor of a military ordinariate, was removed from his job as a result of the arrival of a new chancellor. The Congregation for Clergy refused his hierarchical recourse, and the Supreme Tribunal rejected his appeal to the court by lack of foundation, because the arrival of a new Chancellor is a reason deemed sufficient under canon 485.  The reason for his expulsion was not considered to be defamatory, and the victim’s financial support was not an issue, because his salary continued to be paid by the army[119].

Another common case concerns the ownership of assets of associations, which is regularly the subject of recourse in civil courts despite the canonical importance of the problem, as pointed out by Olivier Echappé:

It is not a question here of a theoretical hypothesis: everyone knows that in France, the real estate patrimony of Catholic schools is in the hands of associations, hastily established in the aftermath of the separation and despoliation of 1905. These have no canonical status, even though their object (and the justification for their existence) is to teach Christian doctrine in the name of the Church, which, canonically, confers on them a public character and makes their property ecclesiastical goods[120].

We can also cite the case of faithful who feel they do not receive from their pastors the assistance they are entitled to expect. Here is an example that relates to the Congregation for Divine Worship and the Discipline of the Sacraments:

In New-Sevilla, in the United States, several parishioners were shocked by the liturgical innovations that their new priest made. As a sign of protest, a parishioner made such a scene that the priest was obliged to call the police, and the archbishop ordered her to stop disrupting the liturgy. But she persisted to the point that, at their meeting on 1 December 1986, the bishop promulgated an extrajudicial criminal decree citing canon 1336, thus prohibiting her from entering the church. When she made hierarchical recourse, on 12 May 1989 the decree was confirmed by the Congregation for Divine Worship and the Discipline of the Sacraments.  In April 1989, the complainant made recourse to the second section of the Supreme Tribunal of the Apostolic Signatura, believing that she acted in a state of self-defense against an aggressor who attacked unfairly, while keeping the moderation required. (c. 1323 5° b). On October 30, 1990, the Tribunal concluded that the archbishop had the right to issue his extrajudicial decree in accord with canons 1720 and 1731 2°; that he had complied with the rules set forth in this canon, including receiving the complainant. Consequently, the recourse was not admitted to discussion at the Tribunal. On 24 November, the complainant filed a new recourse but here again, the Tribunal refused to discuss it because of lack of foundation, considering that in continuing to disturb the liturgical celebrations despite being forbidden to do so, the complainant had not observed the moderation that would have allowed her to be exempted from punishment[121].

 

In this case, the recourse appears to have been illegal, but not all situations are of this type and there are also cases of abuse on the part of ecclesiastical authorities. After having examined a series of topics which have been the subject of recourse, we can legitimately ask ourselves if areas exist which are the topics of administrative decisions concerning the laity, and which are the subject of contentious-administrative recourse.  In Africa, for example, the faithful are too often faced with a bad management of their parish, as reported Achille Mbala-Kyé and Emmanuel Bizogo of Cameroon[122].

According to the law, the parish priest is the manager of the property of the Church (c. 532 and c. 1281-1288), but often the parishes coffers are empty during the transfer of ministry, that is to say when the parish priest changes. In fact, there are difficulties in putting finance councils in place, and many parishes do not send their accounts to the Diocesan entity.  Often, the accounts of the parishes are unused: the priest does not use this account for the income and expenses of his parish. He never deposits any money, but instead is allowed to leave the account in the red over the years.

 

Following the presentation of Professor Zalbidea at the 16th International Congress of the Consociatio, the question remained open as to whether a member of the faithful may take administrative recourse when a parish priest leaves his parish without rendering an account of its financial management, as provided for in c. 1287 §.2[123], with reasonable chances to obtain restitution for the Parish of sums unduly taken away. Further discussion would be useful in this area, where we have not found in any case law of the Apostolic Signatura.

In another area, here are three Canadian testimonies regarding receiving Holy Communion on one’s knees, where it is regrettable that the local Church has not been able to resolve the situations, since we found the first two on an internet site and the third is before Canada’s Supreme Court.

Last week, I went to Sunday Mass with my husband in a neighboring parish. It was the first time that I went there. At the time of communion, we approached, and I went down on my knees before the priest to receive the host. The priest said to me « No! On your feet! « I thought I had heard wrongly. « Uh…sorry? »  » On your feet! Here communion is only given to those who stand! « Then I rose, a little disturbed, and the priest gave me the host on my tongue. My husband, behind me, did the same thing, and the priest refused to give him communion on his knees too[124].

I once saw in my parish two priests distributing communion, one next to the other, the vicar and a visiting priest.  The visiting priest refused to give communion to a person who was kneeling. A little later, I heard the vicar berating him, “If you do that one more time, you will never set foot in this parish again[125] ».

An example of refusal of the sacraments which has been handled by the Supreme Court of Canada is the « Stellerton Case » which involved the refusal to give the Eucharist to six Catholic faithful because they wanted to receive it kneeling, and not standing. The Court ruled in favor of the complainants[126].

In fact, there are hierarchical recourses which are resolved by the Congregation for Divine Worship and the Discipline of the Sacraments:

The Congregation is concerned about the large number of complaints… and considers that the refusal to give Holy Communion to a member of the faithful because he is on his knees constitutes a serious violation of one of the most fundamental rights of the Christian faithful… Such a refusal should never take place… except in the case of… of public sin without repentance on the part of the person, or of his persistence in heresy or schism. When the Congregation approved legislation concerning standing to receive Holy Communion… it did so while affirming that communicants… who kneel must not be denied Holy Communion… In fact, His Eminence Cardinal Joseph Ratzinger has recently stressed… that kneeling to receive Holy Communion has in its favor a secular tradition quite appropriate in light of the real, true and substantial presence of Our Lord Jesus Christ under the consecrated Species[127].

In another area, we cite the challenge of a Bishop by members of his diocese, for which Charles Wackenheim seems to suggest that administrative recourse would not apply[128].

As a result of the appointment of bishops who were strongly contested, the members of the dioceses in question asked how they could make themselves heard, not as individuals or through anonymous letters, but publicly and collectively. The Code says nothing of it. We would also like to know what the law stipulates when a bishop has publicly failed in his mission. The Code envisages this possibility… in the case of a parish priest (c. 1740)[129]

Cases like these are not so rare.

In 2015 in France, some members of a diocese have been faced with a decision of their bishop requiring parents to pay the church tax before enrolling their children in catechism classes. These members were directed to Canonists without Borders in order to verify the current law[130]. After some exchanges, it appears that this decision derived from the fact that the bishop had just presented a building permit for the construction of their future parish house, thus putting at risk the finances of the diocese. After having inquired about the procedures of hierarchical recourse and litigation, the members of the diocese concerned decided neither to bring the matter onto the public stage in order to avoid harming the Church, nor to initiate a recourse considered too complex.  Soon after the bishop was replaced, for reasons of age.

 

While this case remained secret, here is another, which was made public:

In 2002 in the United States, the Boston Globe newspaper investigated that publicly revealed the personal responsibility of the Cardinal Archbishop, who had covered up the actions of dozens of pedophile priests of his diocese. Despite its bias, the film Spotlight[131]  shows that the justice of the Church failed to seriously listen to the victims.

 

In the previous case, it is the press, and not ecclesiastical justice, which helped to protect the victims. This has led to a recent evolution of the law on the transfer and removal of a bishop, when he commits neglect which puts minors in danger[132].

Here is another case in which the Episcopal Conference sided with public opinion after a financial scandal has been revealed.

In 2013 in Germany, the President of the Episcopal Conference participated in a petition by members of the diocese which lead to the transfer of a bishop. The outraged faithful of the Diocese of Limburg called for the resignation of Mgr. T. More than 4,000 of them already signed an open letter against him. In Limburg, near Frankfurt, the population is shocked. On Sunday, approximately 200 opponents gathered in front of the cathedral to protest against « the Bishop of Bling, » as he was nicknamed by the press, and his « egomania. [133] »

 

In other cases, the petition of the diocesan faithful is taken to Rome:

In 2013, in Nigeria, the appointment of Msgr xxx as the head of the Diocese of Ahiara was refused by some Catholics for ethnic reasons. Cardinal Onaiyekan was appointed apostolic administrator of Ahiara. In 2017, a delegation of members of the diocese, accompanied by the President of the Episcopal Conference of Nigeria, travelled to Rome to explain the problem to Pope Francis. He listened to the members of the delegation and judged « unacceptable the character of the situation in Ahiara, » intending to take appropriate measures[134].

 

The previous developments show that administrative ecclesiastical justice sometimes intervenes in disputes between the laity and the ecclesiastical hierarchy, but the frequency of these interventions is low.  This suggests the need for an administrative justice closer to the people, for example at the national level.

 

 

[1] According to the Pontifical Directory 2016

[2] Sarah (Card. Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 249/420.

[3] Paul VI, Dogmatic Constitution on the Church Lumen Gentium, No 37.

[4] Cf. Kasper (Card. William), L’Église catholique, son être, sa réalisation, sa mission. Paris, Cerf, Collection Cogitatio Fidei  avril 2014, p. 300/592.

[5] Paul VI (Blessed Pope), Apostolicam actuositatem,

[6] He was promoted to the Prefect of the Dicastery for the Laity, Family, and Life.

[7] Farrell (Mgr. Kevin) Prefect of the Dicastery for the Laity, Family and Life., According to Anne Kurian, Zénit, 16 novembre 2016. Translated from French

[8] Kasper (Card. William), L’Église catholique, op. cit. p. 295. Translated from French.

[9] Saint Augustine Center of Dakar, symposium of 22-24 February 2017 on the theme of « Repentance: Genesis and timeliness.”

[10] Extraction on 7 November 2016: 88 appeals have been filed by men, 43 by women, 32 by men or women.

[11] The 27 recourses were made by associations (13 cases), bishops (3 cases), priests (4 cases) or applicants non-identified (7 cases). For example, a recourse from a Bishop was examined on 13 June 1987 by the College of the second section, which found a violation of procedure followed by the Pontifical Council for the Laity. Cf. ASS (1987), p. 1293.

[12] Here is the breakdown by dicastery of the 184 recourses in our sample concerning the laity:

  • Congregation for the Clergy in 110 cases
  • Pontifical Council for the Laity in 35 cases
  • Congregation for Consecrated Life in 17 cases
  • Congregation for Catholic Education in 7 cases
  • Congregation for Divine Worship in 3 cases
  • Congregation for the Eastern Churches in 3 cases
  • Congregation for the Evangelization of Peoples in 3 cases
  • Congregation for Bishops in 3 cases
  • Pontifical Council for the Family in one casepicture

 

  • Supreme Tribunal of the Apostolic Signatura in one case (defender of the bond)
  • Fabric of Saint Peter in one case

Some cases on the same topics are submitted by either clerics or religious. Insofar as they are concerned with the laity, we will not return to them in the following chapters.

[13] ABBAL (Elisabeth), Paroisse et territorialité dans le contexte français, Paris, Cerf, 2016, 520 p.

[14] PLOUCHART (Louisa), 2013, « Le diocèse de Rennes, Dol et Saint-Malo : maillage paroissial et pratiques religieuses,” p. 19 à 63, In B. Merdrignac, D. Pichot, L. Plouchart, G. Provost (Dir.) La paroisse, communauté et territoire, Constitution et recomposition du maillage paroissial, Rennes, Ed. PUR, Coll. Histoire, 541 P.

[15] Congregation for the clergy, « Procedural guidelines for the modification of parishes and closure of parish churches,” Roman Replies, (2013).

[16] This is for example in the case cited by RR (2013), p. 13-17 about a dispute on the improper recourse of a church. (C. 1210)

[17] Translation of the author of ASS 1992, p. 1117, concerning recourse No. 22036.

[18] Spanish diocese created in 1995.

[19] Lleida in Spanish.

[20] It is usually referred to under the name of Frange of Aragon (Franja de Aragón in Castilian, Franja of Aragó in Catalan, and Franja of Aragón in Aragonese), a territory of the Autonomous Community of Aragon, Spain, and bordering Catalonia, where the language traditionally spoken is Catalan.

[21] AZNAR (Gil, F. R.) and Sanchez (Roman, R). Los bienes artísticos de las parroquias of Franja: el proceso canónico (1995-2008), Fundación Teresa de Jesús, Zaragoza, 2009.

[22] For example, the art-history site of Antonio VALMAS.

as: www.antonionavalmas.net/spip.php?article56 consulted on 11 August 2015.

[23] Antonio VALMAS recounts 444 steps on the abovementioned site.

[24] RAVINEL (Sophie of), “Des maires sont contraints de détruire leur église.” Le Figaro, 18 May 2007. www.patrimoine-religieux.fr/

[25] www.patrimoine-religieux.fr/

[26] The Church of Saint Louis of Lille has been transformed into a Center for the Safeguarding of Heritage.

[27] Can.  1214 By the term church is understood a sacred building designated for divine worship to which the faithful have the right of entry for the exercise, especially the public exercise, of divine worship.

[28] There are exceptions where all or some part of a church can be used for purposes other than worship, without the church losing its sacred character. This is the case in particular if it is temporarily closed, or lent for a time to a non-Catholic Christian community which later returns it in the same state. It is the same if a part of the church is assigned to uses other than those of worship (administration, meeting room, etc.) so long as the church is not damaged. Similarly, the installation of antennas on the roof or advertisements on the walls while working is possible without the church losing its sacred use. Cf. Nicholas Schöch, OFM, « Relegation of Churches to Profane Use (c. 1222, §2): Reasons and Procedure,” The Jurist, 67 (2007) 485-502.

[29] Can.  1222 §1. If a church cannot be used in any way for divine worship and there is no possibility of repairing it, the diocesan bishop can relegate it to profane but not sordid use.
§2. Where other grave causes suggest that a church no longer be used for divine worship, the diocesan bishop, after having heard the presbyteral council, can relegate it to profane but not sordid use, with the consent of those who legitimately claim rights for themselves in the church and provided that the good of souls suVers no detriment thereby.

[30] Schöch Nicholas, “Deutsche Welle, Churches Profit from Foundation” Boom, 29 January 2006, www.dw/article/0,2122,1846722,00.html, p. 493, note 27.

[31] Provost (James H.), « Some Canonical Considerations on Closing Parishes », The Jurist, 53 (1993), 362.

[32] « Une vague de démolition d’églises menace le patrimoine » » in Le Point.fr of 13 August 2013, consulted on 15 July 2015 on www.lepoint.fr/culture/une-vague-de-demolition-d-eglises-menace-le-patrimoine-13-08-2013-1713609_3.php

[33] MASSIN Le Goff (Guy), Conservationist in the department of antiquities and objects of art, of Maine-et-Loire, the General Council of Maine-et-Loire, wrote: « The violent reactions of some of the inhabitants of this commune in the face of this project are the reflection of a deep emotion which often causes damage in the political order, but especially causes sociological damage. Opinions clash, disputes arise, recourses to justice multiply, fractures between supporters and opponents will resonate for decades, weighing on the commune in a heavy climate of bitterness. » In  » Polémique autour de la démolition des églises : le cas du Maine-et-Loire,”put online on 03 November 2009, consulted on 15 July 2015. URL: Http://insitu.revues.org/5563

[34] Circular of the Minister of the Interior, Overseas, of territorial communities and immigration, referenced nor/IOC/D/11/21246C, dated July 29, 2011, addressed to the Prefect of police and ladies and gentlemen of the Prefects (metropolis) on the buildings of worship: property, construction, repair and maintenance, rules of urban planning, taxation, published on the official French site of Legifrance: http://circulaire.legifrance.gouv.fr/pdf/2011/08/ric_33668.pdf

[35] Habert (Mgr. Jacques), « Ces églises qui font l’Église » Document of the bishops, Conference of the Bishops of France, No. 6/7, Paris 2017.

[36] La Dépêche du midi, Decazeville, 2 November 2017.

[37] Congrégation pour la cause des saint, instruction « Le reliquie nella Chiesa: Autenticità e Conservazione » du 16 décembre 2017.

[38] https://www.iuscangreg.it/diss.php?lang=EN

[39] www.clsadb.com

[40] www.canonistes.org/biblio

[41] Voir par exemple « US Catholics win rare victories on church closings » in USA today, See for example « US Catholics Win Rare Victories on Church Closings,” USA Today, March 5, 2011.

[42] Several cases are described in Roman Replies and CLSA Advisory Opinions, 2011, p. 5-14. and RR (2013), p. 13-17 about a dispute on the improper use of a church. (Canon 1210).

[43] Prot No 17447/85 CA published in Ministerium Justitiae…, Montréal, 2011, 441-528.

[44] Prot No 21024/89 CA, published in Notitiae 26 (1990) 142-144 and in Ministerium Justitiae, op. cit. p. 461-466.

[45] Prot. NO 24388/93 CA published in Ministerium Justitiae…, op. cit,. p. 502-528.

[46] Daneels (Mgr; Frans), « Soppressione, unione di parrochie e riduzione ad uso profano della chiesa parrochiale », Ius Ecclesiae 10 (1998) 111-148.

[47] Daneels (Mgr. Frans) « The reduction of a Former Parish Church to Profane use in the light of the Recent Jurisprudence of the Apostolic Signatura » in « Quod justum est et aequum. Scritti in onore del Cardinale Zenone Grocholewski per il cinquantesimo di sacerdocio », a cura di Mgr Marek Jedraszewski, Facoltà teologica dell’università di Poznan. 2013, (p. 165-169)

[48] Montini (Mgr Gian-Paolo), (Mgr. Gian-Paolo), Promoter of Justice of the Supreme Tribunal of the Apostolic Signatura, « La cessazione degli Edifici di culto,” Quaderni di diritto ecclesiale 13 (2000) 281-299..

[49] Schöch (Nicolas), Vice-defender of the bond to the Tribunal of the Apostolic Signatura, « Relegation of Churches to Profane Use (C . 1222, §2): Reasons and Procedures,” The Jurist 67 (2007), 485-502.

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

[51] Prot No 21024/89 CA, Notitiae 26 (1990) 142-144 and Ministerium Justitiae, op. cit., p. 461-466.

[52] Daneels (Mgr Frans), « Soppressione, unione di parrochie e riduzione ad uso profano della chiesa parrochiale », Ius Ecclesiae 10 (1998) 111-148, cited by Nicholas Schöch, op. cit. p. 488 et note 12.

[53] Mgr Daneels relies in particular on the sentence coram Burke of 21 May 2011, Prot. 41719/08 CA, as well as prot. 45242/11 CA.

[54] Mgr Daneels relies in particular on the sentence coram Burke of 21 May 2011, Prot. 41719/08 CA, as well as prot. 45242/11 CA.

[55] Idem.

[56] Prot. 31208/00 CA, unpublished decision cited by Nicholas Schön (op. cit.. p. 502 note 59).

[57] Mgr Daneels DANEELS relies on three sentences: coram Burke (Prot. 42278/09 CA) of 21 May 2011; coram Caffara (Prot. 41719/08 CA) of 21 May 2011, as well as on the decree of the Congress of 11 May 2012 (Prot. no. 45190B/11 CA).

Cf. can. 1238 § 2.

[58] Cf. can. 1238 § 2.

[59] Coram Burke, 11 May 2011, Prot41719/08 CA, The Jurist 73 (2013) 597-643

[60] Coram Burke, 11 May 2011, Prot41719/08 CA, The Jurist 73 (2013) 597-643

[61] Mgr Daneels in op. cit. p. 168.

[62] Coram Burke, 11 May 2011, Prot. 41719/08 CA, The Jurist 73 (2013) 597-643

[63] Can. 788 §1. When the period of the precatechumenate has been completed, those who have made known their intention to embrace faith in Christ are to be admitted to the catechumenate in liturgical ceremonies and their names are to be inscribed in the book designated for this purpose.

  • 2. Through instruction and the first experience of Christian life, catechumens are to be initiated suitably into the mystery of salvation and introduced into the life of the faith, the liturgy, the charity of the people of God, and the apostolate.
  • 3. It is for the conference of bishops to issue statutes which regulate the catechumenate by determining what things must be expected of the catechumens and by defining what prerogatives are to be recognized as theirs.

[64] In France, this involves in particular the rite of Christian initiation of adults (RICA) and document n° 9 of the Bishops’ Conference of France, “Réflexions sur le catéchuménat,” Paris 2014.

[65] Can.  843 §1. Sacred ministers cannot deny the sacraments to those who seek them at appropriate times, are properly disposed, and are not prohibited by law from receiving them.

[66] Can.  865 §1. For an adult to be baptized, the person must have manifested the intention to receive baptism, have been instructed sufficiently about the truths of the faith and Christian obligations, and have been tested in the Christian life through the catechumenate. The adult is also to be urged to have sorrow for personal sins.

[67] Ordinary trial, brief or documentary finding of nullity, Pauline or Petrine privilege, procedure Super Rato, trial in presumption of death of the spouse, etc. governed by the Code of Canon Law, the Motu Proprio Mitis Iudex, the 30 April 2001 instruction Potestas Ecclesiae, etc.

[68] There exist also unjustified decisions of acceptance to the sacraments which lead to scandals in the community, such as for example the baptism of a person living in public concubinage, or a request for “debaptism” by a neophyte who had not understood what he had committed to by his baptism.

[69] Chevalier (Catherine) “Critères canoniques et pastoraux pour l’admssion au catéchuménat,” in Le droit de l’Eglise au service du catéchuménat, Paris Arpège 2018, 100 p.

[70] Rhode (Prof. Ulrich), « la funzione d’insegnare della chiesa in un contesto secularizzato » Conference given at Rome on Octobre 6th 2017 during the 16th international meeting of the Consociatio.

[71] Prot 30266/99 CA cited by ASS (1999) p. 936.

[72] Prot 30677/99 CA and 30678/99CA cited by ASS (1990), p. 892.

[73] Cases not referenced, cited by ASS (1978) p. 625.

[74] Prot. 36007/04 CA not admitted to the discussion by the decision of the Congress on 01/06/06, and then of the College on 28/04/2007.

[75] Prot. 23208/92 CA not admitted to discussion by decision of the Congress of 23/11/1992.

[76] A German married deacon filed an appeal in 1987 for having been suspended, but his application was not admitted to discussion. (ASS (1988), p. 1405)

[77] Cf. ASS (1988), p. 1405 Coram Stickler, on 28 January 1988. Registration No. (Prot) not indicated.

[78] Case cited by the ASS (1987), p. 1292.

[79] Case cited by the ASS (1987), p. 1292.

[80] Cf. art 136 of the General Regulation of the Roman Curia, 1999.

[81] John-Paul II, Apostolic Exhortation Christifideles Laici, No. 29.

[82] Miayoukou (Hervé), « L’émergence en droit canonique des associations privées de fidèles » L’année canonique, 52, 2010, p. 249-256.

[83] Cf. S.C. of the Second Vatican Council, resolution Corrienten. 13 November 1920: AAS 13 (1921), p. 139.

[84] John-Paul II (saint), Christifideles laici

[85] Paul VI, Apostolicam actuositatem, No 19.

[86] Site of the Pontifical Council of the Laity, www.laici.va, consulted on 27 November 2011 in the rubric « Twenty years after. »

[87] Francis (Pope), Speech of 17 June 2016 before the Assembly of the Pontifical Council for the Laity.Translated from French.

[88] Echappé (Olivier), « Les biens des associations d’Église », L’année canonique, 47, 2005, p. 51-62.

[89] Ryłko (Cardinal Stanisław), Titular Archbishop of Novica, President of the Pontifical Council for the Laity, «  préface du répertoire des associations,” consulted on the website of the Vatican on 17 November 2011 at the address: www.laici.va/content/laici/fr/sezioni/associazione/repertorio/preface_du_card_stanisawryko.html

[90] Column 1: Millions of the faithful; Column 2: Number of recognized associations of the faithful; Column 3: Number of recognized associations of the faithful by million Catholics = ratio col. 1 / col 2.

[91] Column 4: Number of inhabitants; Column 5: Number of civil associations; Column 6: Number of civil associations recognized by million of inhabitants; Column 7 = Column 1 / column 4.

[92] Ratzinger (Cardinal Joseph), « Entretiens sur la foi », remarks reported by Vittorio Messori, Paris, 1985, Fayard, p. 48/252.

[93] CIC/83 C 215

[94] Canon 299 §3. No private association of the Christian faithful is recognized in the Church unless competent authority reviews its statutes.

[95] The conditions for obtaining legal personality are specified in canon 114: it must be that associations are: 1) Ordered for purposes (useful, cf. §3) which agree with the mission of the Church (works of piety, apostolate, charity, cf. §2); 2) oriented on an object that is broaer than the interests of members; 3) equipped with sufficient means to ensure their sustainability

[96] Can. 298 §2. The Christian faithful are to join especially those associations which competent ecclesiastical authority has erected, praised, or commended.

[97] Can. 299 §2. Even if ecclesiastical authority praises or commends them, associations of this type are called private associations.

[98] Can. 300 No association is to assume the name Catholic without the consent of competent ecclesiastical authority according to the norm of can. 312.

[99] Can. 301 §3. Associations of the Christian faithful which are erected by competent ecclesiastical authority are called public associations.

[100] Can. 302 Those associations of the Christian faithful are called clerical which are under the direction of clerics, assume the exercise of sacred orders, and are recognized as such by competent authority.

[101] In terms of competencies, the Supreme tribunal stated that the recourse relating to the pious-association negotiations is the responsibility of the Congregation for the Clergy, not the Council for the Laity (Prot. 13782/81 CA).

[102] John-Paul II, post-synodal Apostolic Exhortation Christifideles Laici of 30-12-1988 (AAS 81 [1989] 393-521.

 

[103] Francis (Pope), Evangeli Gaudium, No 130.

[104]“À propos des critères d’ecclésialité from John-Paul II to Pope Francis, La Croix, 19 March 2017.

For example, it would be possible to predict a gradation in the recognition for simple private associations:

  • a simple examination of the existence of the statute for associations governed by canon 299 §3;
  • a substantive review of the statutes, to ensure that they respect the right of persons and the right of the Church to obtain legal personality, in accordance with canon 322;
  • the requirement of three years of existence and the review of the criteria of ecclesiality for associations praised and recommended by the Church, in accordance with canon 299 §3.

[105] Martinez Sistach (cardinal Lluis), Associations of Christ’s Faithful, coll. Gratianus, Montréal, Wilson & Lafleur Ltée, 2008, 24×16, p. 113/174 p.

[106] Navarro (L.), Diritto di associazione e associazioni di fedeli 1991, pp. 290,, cf. Note 2.

[107] Pagé (Roch), « La reconnaissance des associations de fidèles » in Studia canonica, 19, (1985), p. 332-333. Translated from French.

[108] Pettinato (S.), « Le associazioni dei fedeli: la condizione giuridica dei battezzati », in Il fedele cristiano, Bologna, 1989, p. 234 Cited by P.A. Bonnet, « Recognitio statutorum consociationum privatum », in Periodica 90 (2001) 3-43, p. 41 note 184.

[109] Feliciani (Giorgio). “Il diritto di associazione e le possibilità della sua realizzazione ell’ordinamento canonico”, in Das konsoziative Element in der Kirche. Akten des VI. Internationalen Kongresses für kanonisches Recht, München, 14.-19. September 1987, St. Ottilien, EOS, 1989, pp. 397-418. Cited by P.A. Bonnet, Recognitio statutorum consociationum privatum, in Periodica 90 (2001) 3-43, p. 41 note 184.

[110] Bonnet (Piero Antonio),  La « recognitio degli statuti delle associazioni private quale granzia di pluralismo nella chiesa (can 299 § 3 CIC), Periodica 89 (2000) 531-563 et Periodica 90 (2001), p. 3-43.

[111] c. 299 §3. No private association of the Christian faithful is recognized in the Church unless competent authority reviews its statutes.

[112] Riposte catholique, 23 June 2017.

[113] https://agape-lepuy.fr/qui-sommes-nous/historique-agape-nd-du-puy/ consulted on 11 july 2017.

[114] Salon Beige 9 July 2017; Riposte catholique, 10 July 2017.

[115] ASS (2014), p. 845.

[116] Navarro (Luis) “La tutella giudiziaria dei sogetti senza personalità giuridica canonica » in Studi giuridici XLV, Roma 1977, p. 211-228.

[117] Registration Number (Prot) not indicated, cf. ASS (1989), p. 1218, 9th case.

[118] Prot. 39305/CA, RR (2007), p. 43-44. « Canon 1311 and followings ».

[119] Prot. 48091/13 CA, in Monitor eccelsiasticus, CXXXI (2016), p 37-39.

[120] Echappé (Olivier), « Les biens des associations d’Église », L’année canonique, 47, 2005, p. 51-62. Translated from French.

[121] Notitiae 26 (1990) 711-713 and Ministerium Iustitiae, op. cit., p. 603.

[122] Bidzogo (Emmanuel), Eglises en Afrique et autofinancement, L’Harmattan, Paris 2006, p. 87 et 88/140.

[123] C. 1287 §2. Les administrateurs rendront compte aux fidèles de l’usage des biens que ceux-ci ont offerts à l’Église, selon des règles à établir par le droit particulier.

[124] Forum de la famille catholique, http://forumfc.clicforum.com/t2736-Refus-de-la-communion-a-genoux.htm

[125] Ibidem

[126] Cogan (Patrick J.), the protection of rights in hierarchical churches: an ecumenical survey, The Jurist, 46 (1986), p. 227. Double translation.

[127] Medina Estevez (cardinal Jorge), Notitiae, review of the Congregation for Divine Worship and the discipline of the Sacraments, November-December 2002, quoted by the Forum of the Catholic family.

[128] For my part, I would tend to think that a hierarchical recourse or even litigation, is theoretically possible, but that its chances for success favorably in time reason-nables are minimal, if although the diocesan him prefer the diplomatic channel or the media channel.

[129] Wackenheim (Charles), Une Église au péril de ses lois, Montréal, 2007, Novalis, p. 27/204 p.

[130] www.canonistes.org/un-pretre-peut-il-mettre-des-conditions-a-linscrition-au-catechisme-et-notamment-le-fait-davoir-paye-le-denier-du-culte/

[131] It particularly resulted the film Spotlight. The latter had obtained an Oscar at the Cannes Festival in 2016, by a jury which had probably not a position very objective by report to the Catholic Church.

[132] Francis (Pope), Apostolic Letter in the form of a Motu Proprio: « As a loving mother« »

[133] Cf. Apic et KNA, www.news.va/fr/news/les-depenses-faramineuses-de-leveque-de-limbourg-e

[134] Zenit, 8 June 2017, Anne Kurian

Principles, Organization and Procedures

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.
  1. 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:

  1. 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.
  2. 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.

 

  • Mercy and Charity

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:

  1. 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!

 

  1. 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:

  1. – 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.

 

  1. 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:

  1. 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

  • 2 The use must be seals:

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]:

  1. 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:

  1. 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:

  1. 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;
  2. Constitution of a Promoter of Justice for the cause;
  3. Information of the appellant and his successors in title as to what they have to do;
  4. Possible designation of an advocate-procurator, in those cases where the Dicastery concerned does not name one,
  5. Setting a time limit for the counsel to the appellant to submit his brief;
  6. 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;
  7. Reception of the brief votum pro rei veritate of the Promoter of Justice;
  8. Possibility for the advocate-procurators of the parties to respond within ten days, and, lastly, for the Promoter of Justice;
  9. 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.

Historical Perspective

Chapter 1: Historical Perspective

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

In any innovative process a historical approach is necessary, as our African friends will tell us: « If you do not know where you are going, look at where you come from, » or as Mgr. Jean-Louis Bruguès explains it, « The memory allows access to the identity and to trust[1].  » Similarly, the Prefect of the Vatican’s Secretariat for Communication says:

We must have very much at heart the history, memory, the future, » and accept « being reborn a second time. Rebirth from on high, to see in God’s way the events of the world[2].

This first chapter provides a historical overview of the justice of the Church since the origin of Christianity until August 15, 1967, when Blessed Pope Paul VI promulgated the Apostolic Constitution Regimini Ecclesiae Universae, reorganizing the Roman Curia and giving jurisdiction to the Supreme Tribunal of the Apostolic Signatura in contentious-administrative matters.

  1. Overview of the Legacy of Historical Evolution[3]

To speak of administrative justice in the Church as it has worked for half a century does not necessarily imply a historical study, if only because this « Administrative justice » was not a reality organized as such over the course of time. It seems necessary to us, however, in order to grasp the present situation, to refer briefly to a few features of what was the history of ecclesiastical justice during the course of the history of the Church.

Certainly, the New Testament did not foresee ecclesiastical justice, but it made some proposals in this sense: Saint Matthew (18, 15-20) encouraged the Christian to correct his brother with charity; Saint Paul (I Cor. 6, 1-8) asked Christians not to resort to the courts of the Gentiles, but to resolve difficulties among themselves. Such are the bases of « fraternal correction, » the importance of which Pope Francis regularly reminded us, in stating that it is an action to heal the body of the Church[4].

From the beginning, disputes erupted and the existence of justice seemed necessary. Up to the end of the 3rd century, the Church was either ignored or persecuted by the Roman imperial power; in this context, it nevertheless organized and put into place an ecclesiastical system of justice; the latter operated essentially in the hands of the bishop even though, at times, the dispute was brought before a meeting of bishops, one of the functions of the first local councils being to resolve disputes. It is interesting to note these two modalities of action (it would no doubt be abusive to qualify them as « procedure » in the legal sense of the term): either intervention of the bishop with « monarchical” authority, or the decision of an assembly of bishops with « collegial” authority. The alternation between the two mechanisms of authority will be reflected throughout the history of the Church.

In the 3rd century, Christianity was first tolerated, then recognized (Edict of Milan in 313, under Constantine), and finally declared to be the only religion of the Roman Empire (Edict of Thessaloniki in 380, under Theodosius I) [5]. The relations between the new religion and the political power then took on characters they will never have again in future: a mutual support in a serenity that was almost absolute. The Church had the Gospel message, but had to build its structures of authority and laws.  It found in the empire a government, an administration, judicial bodies and laws surprisingly well constructed and refined. Accordingly, it borrowed from the Empire everything that could be useful to its organization, as long as this did not upset the message of the Gospel, which naturally remained its higher law. In this context, ecclesiastical justice flourished, in perfect collaboration between the two powers. Imperial legislation regulated the audientia episcopalis, the Tribunal of the bishop: Christians submitted their disputes to the bishop; the secular judges had the obligation to recognize episcopal sentences and to ensure their implementation. The audientia episcopalis took place within the whole of the procedural system of the Christian empire. The imperial constitutions significantly enhanced the development of its jurisdiction, ratione materiae and ratione personae, to such a point that Augustine came to deplore the time spent in judging, to the detriment of the exercise of his pastoral care. In addition, now, the growth of Christianity allowed everyone to go to a secular judge who might also be a Christian. It would be vain to seek, in the Roman Empire, the origins of an ecclesiastical justice specialized in administrative cases. Regarding this period, let us remember this almost perfect agreement between the two powers, in particular with regard to the organization of the judiciary; total confidence granted to the bishops by the Emperor; constant recourse by the Church to secular legislation which it could not do any better. Perhaps the Church lived through the only period of its history when relations between the two powers cannot be analyzed in terms of rivalry and superiority of one over the other.

From the fall of the Roman Empire of the West (476), the East and the West had clearly distinct developments, and we will limit our remarks to the West, where Pontifical primacy was affirmed. During the Middle Ages, ecclesiastical justice took on considerable importance. Society was Christian; ecclesiastical justice seemed organized and effective, compared to the secular courts (essentially composed of noblemen) which often operated poorly because less competent judges largely handled the procedures.

Gradually, secular powers tried to strengthen the authority of their own officers and their own courts. This was the royal policy in France, in particular, dating from the reign of Saint Louis IX. Nevertheless, the cases considered by the Church remained numerous ratione personae, the Church and the clerics defended the privilege of the forum allowing clerics (and to other categories protected by the Church) to be judged only by ecclesiastical justice; in the same movement, clerics and canonists agreed to combat secular courts that were tending to reduce their competence ratione materiae. The 12th and 13th centuries saw the climax of classic canon law, corresponding to all-powerful officials, resolving controversies in accord with skillful Roman-canonical procedures.

At the same time, pontifical authority evolved from the notion of pontifical primacy to plenitudo potestatis. This development had consequences for the organization of justice in the Church. The doctrine of pontifical primacy was developed as early as the end of the 4th century, and undoubtedly reached its peak in the Gregorian reform. It is expressed in particular by the Dictatus Papae, a collection dating from 1075. This law implied recognition of the supreme authority of the Roman Pontiff in the Church, and therefore of clerics as a whole, of discipline and of ecclesiastical structures. The doctrine of the plenitudo potestatis accompanied the affirmation of pontifical theocracy, which reached its climax in the 13th century; it proclaimed the omnipotence of the Pope, in the temporal realm as well as the spiritual; Rome tended to exert the Dominium Mundi. Therefore, the Pope had to develop organs of government of this “world.” The pontifical chancellery expanded and gave birth to structured Roman courts: the Tribunal of the Penitentiary for the internal forum, and that of the Rota for the external. Theoretically, these bodies remained under the immediate authority of the Pope and if they judged in the name of the Pope, but in practice, the question of the degree of independence of these Tribunals arose, a question that would remain constant in following centuries: was pontifical justice, rendered by judges delegated to act on behalf of the Pope in the Roman Tribunals, always in conformity with the decision of the Pontiff himself? Legally, this question is essential; practically, it is equally fundamental to the litigant.

The trend toward Roman centralization was therefore established, and would not cease to grow: local courts dealt with most of the litigation and the pontifical Tribunals decided the rest, sometimes in first instance but more often on appeal. The pattern remained. Next to the Penitentiary and the Rota, the Apostolic Signatura was gradually put in place. The Pope signed petitions, then entrusted this task to his chancellor or vice-chancellor, while reserving the possibility to intervene personally in various cases. In the second half of the 15th century, the papal Signatura was distinguished from the communal Signatura, the embryo of an Apostolic Signatura which would evolve still more in this general process of Roman centralization.

We need not dwell here on the various crises that crossed the Church and which, at times, called into question this pontifical centralization (in particular the Great Schism of the West, and the conciliar crisis).

In this historical schema sketched with very broad strokes, administrative justice does not seem to have had, over the centuries, any specific character: there were no specific courts that followed a specific procedure for certain categories of disputes.

In order to complete this historical perspective, during these same centuries, one can ask a question: did the secular court system include administrative justice? Historians of the law debate this. From the medieval era, a litigant could complain to a court about an act of public power, committed more often by a lord during the feudal era. Jean-Louis Mestre inferred that there was administrative justice. However, François Burdeau supports the opposite thesis, considering that there was no « administrative justice » since there did not exist two distinct orders of courts; this distinction between civil jurisdiction and administrative jurisdiction was not conceivable in the old France which contemplated no separation of powers. No doubt these two theses do not totally contradict each other, but can be partially reconciled; however, analysis of this secular judicial order is not our primary aim.

On one point, perhaps, we can see a relative similarity, in history, between the ecclesiastical system and the secular system. In both cases, acts of an administrative nature could be the subject of recourse: judicial recourse, extra-judicial, perhaps extraordinary recourse. It matters very little. In this study, we will only take into consideration that the Church for its part, and the secular powers for their part, admitted to examine an administrative act, and they did this at least since the medieval era. In an organization which was not an « administrative power,” separate from other authorities, there could hardly be question of entrusting the consideration of these acts to a specific authority, which had competence to rule on administrative disputes.

As regards the State in France, specific instances were gradually being in place at the beginning of the 19th century (Council of Prefects and Council of State); little by little they acquired independence in relation to the executive power and the Government (1871).

What was in it for the Church? The Apostolic Signatura saw several reforms during the course of its history. Two are fundamental: that made by Sixtus V in 1588, in the Constitution Immensa Aeterni, then that of Pius X in 1908 by the Constitution Sapienti Consilio. Neither one created an administrative tribunal. In 1908, the Church and the Government of the Roman Curia were characterized by the doctrine of a “Perfect Society”; one of the key points of this theory was to emphasize that the Church has all the attributes of a State and a state government. The drafters of the 1917 Code built their system on the basis of the Societas Perfecta. However, they did not establish an administrative court, like the States had. We can detect, in the 1917 Code, a draft of the organization of such a jurisdiction, which was not yet a reality[6]. This had to wait for 1967, when Blessed Paul VI created a Tribunal, or more exactly a section inside the Tribunal which is the Apostolic Signatura, that is responsible for settling dispute arising from the exercise of administrative power in the Church.

In 2017, the Church therefore celebrates the Golden Jubilee of the Tribunal!

  1. Some Notable Examples

In order to be more concrete, we will illustrate the above comments with a few examples of what we today call administrative justice, focusing in particular on episodes that have marked the collective memory.

2.1. Justice from the Early Ages

In the early years of the Church, many New Testament texts evoke a situation where religious authority adopts or intends to adopt a decision that is questionable, even unfair, and another religious authority wants to rectify it. Here is an example:

John said to him, « Teacher, we saw someone driving out demons in Your name, and we tried to prevent him because he does not follow us. » Jesus replied, « Do not prevent him. There is no one who performs a mighty deed in My Name who can at the same time speak ill of Me[7] .

At that time, there were already controversies and also divisions[8] that the first Christian communities were seeking to resolve among themselves. Similarly, a widow who is aggrieved by a deacon may ask to be heard by a priest, a bishop or an apostle[9]. Ecclesiastical justice resolved tensions within the Church, as was illustrated by Eusebius[10], Kevin Matthews[11] or Charles-Henri Hefele:

If a priest has a conflict with his own bishop or with another bishop, he must bring the dispute before the Synod of the Eparchy (province). If, however, a bishop or a cleric is in conflict with the Metropolitan of the province itself, he must choose either the exarch of the diocese or the See of Constantinople, and bring the case before him[12].

The result was intense ecclesiastical legal activity, to the point that:

Some bishops, including Saint Augustine, complained that they were overworked with hearing trials, which diverted from their true mission[13].

Let us reflect on one of his sermons about justice:

The tares are everywhere. Where did the enemy not sow the tares? […] Did he sow them among the laity, but not among clerics and bishops? […] Sometimes also human judgment thinks that such is wheat, but they are the tares; and we think that such are the tares, but in reality, they are wheat. […] Because of this hidden destiny, the Apostle says: « Do not judge before the time until the Lord comes, and He will illuminate the secrets of darkness and manifest the thoughts of hearts; then each will receive praise from God » (1 Cor. 4, 5-6), the praise of man passes away; often a man praises what is evil, and he does not know; sometimes a man accuses a saint, and he does not know. May God forgive the one who does not know, and may He come to the aid of the one who suffers[14].

2.2. The Inquisition

With the approach of the year 1000, and the 11th century, heresy constituted a serious threat that it was necessary to eliminate with the Sign of the Cross and, if necessary, by fire and sword[15]. Pyres appeared in 1022 in Orleans, at the instigation of King Robert II:

King Robert had more than fourteen people burned, including the best clerics and the most prominent lay people of the city[16].
It appears that it involved a matter of innovation, before the decision of the sovereign had been legitimized by the consent of five bishops and important lay people who were present[17]

Some clerics tried to temper the severity of secular power and popular revenge.

  • This verdict, which was severe and seems to be incredible[18], provoked in any case mixed reactions in church circles[19].
  • In some cases, there were also seen some prelates who were very firmly opposed to the use of violence against the heretics.
  • Wazon of Liege condemned the praecipitam Francorum rabiem, which in many cases had led to the massacre of suspects without them even having been judged[20].
  • In 1135, Bishop Albéron II of Liege and his clergy opposed with some success the massacre of the first Cathars arrested in the diocese, and managed to snatch most of them out of the hands of an enraged populace[21].

Rome also played a growing role as judicial arbiter in matters of ecclesiastical discipline[22]:

After the victory of the Gregorian reform and the end of the schism of 1130[23], the Roman Church had become a true High Court of Justice, to which flowed more and more frequently appeals of all kinds. […] Although the initiative never actually made it outside of Rome, appeals coming from outside spurred the Roman Curia to assume the role of arbitrator[24].

After having tried in vain to reason with the chief Cathars, Church and State adopted three different types of approach: pastoral with the Friars Preachers, military with the Albigensian Crusade, and legal with the Inquisition.

The facts are in any case indisputable: after having hesitated and fluctuated for a long time, the papacy has chosen, from the end of the 12th and particularly the 13th century, to use a firm hand against all forms of religious dissent, whether through the Albigensian Crusade launched by Innocent III in 1209, or through extremely harsh sanctions taken against the heretics in the years 1215-1230[25].

Formally, the medieval Inquisition[26] was brought before the ecclesiastical diocesan courts by Pope Innocent III in 1199, while Gregory IX organized it in February 1231 with the Constitution Excommunicamus, prescribing life in prison for repentant heretics, and the death penalty for intransigent heretics[27]. The history of the Inquisition is a bearer of many prejudices, which it is appropriate to objectify.

Regarding the Inquisition, there have been diffused such fantastic legends that the simple recovery of a proper perspective, endorsed by the unanimous agreement of those that the scientific community recognizes as the finest specialists, can look like supplication[28].

In 1542, Pope Paul II instituted a commission of six Cardinals with a mission to oversee issues of faith, in order to preserve them from errors and false interpretations. This commission, known as the Holy Roman and Universal Inquisition, had at its inception the exclusive character of a Tribunal for cases involving heresy and schism[29].

In 1998, the Church revisited the Inquisition, at an international symposium held in Rome from 29 to 31 October 1998, whose acts were published in 2003[30]. The negative side of the Inquisition was acknowledged there:

We recognize today by common accord that this relentless battle [of the Inquisition] saw some bitter victories, for which Catholic Christianity still pays the price: nonetheless it is necessary, keeping a prudent distance from a short-sighted apologetics with an anachronistic sense of guilt, to grasp right away, with historical and doctrinal clarity, the centuries-old evolution of complex relations between fides and mores, between faith and heresy, between orthodoxy and heterodoxy [31].

However,

It nonetheless has to be said that the Inquisition brought progress, because nobody could be judged without an inquisitio, i.e. without there having first been an investigation, a review[32].

Indeed, the positive aspect of the Inquisition was not appreciated enough, because all in all, it is better to have an imperfect justice[33]  than a military expedition[34] characterized by the saying, « Kill them all, God will recognize His own,” formulated in the course of the Albigensian Crusade[35]. It also seems that the Inquisition helped to limit the number of executions, in a context where the whole world was suspect:

In the XIVth and XVth centuries, the accusations of heresy multiplied and were now aimed at all those who disobeyed the Church or were opposed to its authority, including in the temporal domain. The circle of proceedings kept widening, and eventually they considered to be heretics men and women whose only fault was to publicly denounce the abuses of the clergy and the ecclesiastical hierarchy’s leanings toward authoritarianism[36].

A famous case of ecclesiastical justice from that era is that of the Templars.

Between 1307 and 1312, a series of papal bulls governed the order of the Templars following a trial for heresy prompted by rivalries between Pope Clement V and the King of France, Philippe IV “le Bel.” Here are a few points of reference in this complex case. On the morning of October 13, 1307, Philippe IV arrested the Templars in France, and asks other European sovereigns to do the same. In 1307, Pope Clement V publishes the bull Pastoralis Praeminentiae, ordering European sovereigns to stop the Knights Templar who reside in their territory, and put their assets under the management of the Church. In 1308, the bull Subit Assidue provides for two separate procedures for a trial of the Templars: one concerned physical persons, the other the Order itself as a legal person. Later, the bull Faciens Misericordiam defined the charges brought against the Templars. The same year, Pope Clement V secretly absolved Jacques de Molay and the other heads of the Templars of the sins that the Inquisition had accused them of[37]. In 1312, the bull Vox in Excelso suppressed the Templars, then the bull Ad Providam transferred the property of the Temple to the order of the Hospitallers, while the bull Considerantes Dudum established the legal situation of former Templars in three categories.

 

In general, public opinion considered the Inquisition to be a criminal court, yet the archives of the Holy Office which were opened in 1998 show that administrative law was prevalent:

It is enough to flick through one of the volumes of decrees of the Congregation [Roman and Universal of the Inquisition] to see the very low number of doctrinal investigations, compared to the large number of administrative cases[38] … /… The number of administrative proceedings was on the contrary very vast: they ranged from formal or suspected heresies, which were more specifically under the jurisdiction of the Holy Office, to cases involving apostasy, bestiality, magic, spells, polygamy, and many others, which were only indirectly under its jurisdiction. The most numerous trials were to resolve cases that were submitted by the lower courts: Nuncios, bishops and inquisitors. There was regular contact, surprisingly fast, with the aforementioned bodies, and a large mass of work […] that could include eight meetings of Cardinals in the case of Cristoforo Sapone[39].

2.3. Jurist-Saints

In the 13th century, the justice of the Middle Ages was located in a culture quite different from that of our days, and so is it appropriate to give a different perspective, as recommended by Cardinal Kasper:

Throughout the history of the Church, it has never ceased to have jolts and charismatic movements that have shaken it, to avoid the dangerous temptation to gentrification. That is why we cannot write the history of the Church merely as the history of an institution, still less as a history of the crimes of the Church. It is foremost a history of the saints and a history of movements of sanctification and renewal.[40]

Let us turn therefore to the lives of two saints who have had an important influence on the justice of the French Middle Ages: a layman, Saint Louis (1214-1270), and a cleric, Saint Yves (1253-1303).

According to Jean Foyer,

It was necessary to await Saint Louis, in the middle of the 13th century, so that there could be a return to rational evidence, which remained in force only in the ecclesiastical courts[41].

Louis IX, who reigned in France from 1226 to 1270, undertook a comprehensive reform of judicial institutions in 1254 with the assistance of the royal Inquisitors, ensuring a connection with the Curia in parliamento, which played the role of a court of appeals for decisions made by the courts of the bailiwick[42]. He renewed the “Quarantine of the king[43]”, ordered the presumption of innocence, prohibited the ordeal[44] and established a civil form of supplicatio[45], allowing for an appeal to the king in disputes between a feudal ruler and one of his subjects. He made his recommendations about justice to his son[46].

Saint Yves is the patron saint of lawyers and of all legal professionals[47]. From his process of canonization[48], conducted in 1330 at Tréguier in Brittany and presented to Pope John XXII on June 4, 1331[49], it is clear that Yves Hélory of Kermartin (1253-1303) [50] was an honest man of good life[51], chaste and humble, assiduous in prayer, living a life of great austerity and goodness to the poor. Most of the witnesses stressed his tremendous love of justice and peace. Here are some extracts from the evidence contained in the records of his canonization process:

Dom Yves […] argued cases for free for the poor, minors, widows, orphans and all other unfortunate persons; he defended their cases; even without being asked he offered to defend them, and thus he was called everywhere the lawyer of the poor and the unfortunate. … /… He became an official of the Archdeacon of Rennes, and subsequently an official of the bishop of Tréguier. In his work he behaved in a holy and just manner, without being preferential or differentiating between people[52].

He was a man with a great spirit of justice, because he was trying to bring peace between people who disagreed, respecting their rights as much as he could, and when he could not get them to make peace between them, as an official of Tréguier he meted out swift justice[53].

During the period when he occupied the office of an official, he encouraged all his collaborators to be fair, as was said publicly, and, when he could, he made every effort to bring peace to opposing parties. I personally saw Dom Yves many times establishing peace between many people who had taken their disagreements to court[54].

Since a woman had no money to pay for the court records she needed, he asked the notaries of the court in question to do it for the love of God, and they did so[55].

A poor knight called Richard Le Roux, of the parish of Trédez in the diocese of Tréguier, went to court against the abbot of the Blessed Mary of Relecq in the diocese of Quimper, and had no funds to continue his court process. His poverty would have made him lose the whole case, if Dom Yves had not intervened to promote and support his case for free as a courtesy, and he won his case. However, Master Yves Hélory only agreed to take in hand the case of this poor man if he would swear on the Holy Gospels that he thought he was in the right. He also undertook to hear the testimony of those who recognized that his case was just. In these regions, these facts are well known to the public[56].

He defended the cases of the poor, widows and other unfortunate persons as much as he was able[57].

He enjoyed such great authority and respect that he managed to reconcile people who were in dispute. It was to this mediation that he often dedicated himself. Those who were in disagreement did not trust others; they relied only on him and he always managed to reconcile them in peace.[58]

With regard to medicinal penalties, Saint Yves did not administer them only in the course of a canonical trial:

When he [Dom Yves] arrived in this parish [of Louannec], the mismanagement of the previous Rector, who had little or no concern for the good of souls, had brought it about that a good number of people there were living immoral lives. Upon his arrival, Dom Yves began to preach to his parishioners the Word of God, and his preaching was followed to the point that honest and good people improved the bad, depraved or dishonest parishioners, who were thus put on the way of salvation through his holy and good sermons.  He also brought to repentance those who indulged publicly in lust or usury; they amended their lives thanks to him, and he made them fast on bread and water for some days and at certain periods, to go without a shirt, to go on pilgrimages.[59]

Here is how he conducted himself:

Geoffroy de l’Ile and my mother took opposing sides, they had a dispute and an important trial in respect of movable and immovable property. Dom Yves insisted that the parties make peace between by finding some amicable arrangement. But more often, Geoffroy did not. Finally, one day Dom Yves told the complainants that he wanted to celebrate Mass, and they had to wait until the Mass was finished, because he had hope in the Lord and confidence that after the Mass they would find peace and concord. When the Mass was over, Dom Yves returned to the complainants; and our Geoffroy, who opposed him very much before the Mass, was led to peace and concord by the holy prayers of Dom Yves, that is what I believe, and he offered to engage in mediation on the disputed points, and abide by the decision of Dom Yves, whatever it would be. Subsequently, Dom Yves restored between the parties good peace and concord and put an end to this trial which gave satisfaction to each of the Parties[60]

Finally, the invocation of Saint Yves, after his death, is at the origin of many miracles and inexplicable healings, as well as the resurrection of more than ten persons[61].

2.4. The Index and the Condemnation of Books

In the 16th century, after the emergence of Protestantism, a new episode marked ecclesiastical justice, namely the publication of the Index Librorum Prohibitorum, the index of forbidden books, created in 1559 and regularly updated until its suppression in 1966[62], with addition made by the Pope or the Sacred Congregation of the Roman and Universal Inquisition. Many administrative decisions were made against writers, clerics or laypersons, with a right of defense that was more or less important granted to the authors concerned.

For example, Galileo was interrogated by the Holy Office about his successful book, Dialogue Concerning the Two Chief World Systems which received an imprimatur, but which embraced Copernicus’ theory of heliocentrism that had been condemned fifteen years earlier[63]. On 22 June 1633, at the Dominican Convent of Santa Maria, a ruling was made against Galileo who, under threat of torture, pronounced the formula of abjuration that the Holy Office had prepared[64]. On 31 October 1992, he was rehabilitated by Pope Saint John Paul II on the occasion of his speech before the Pontifical Academy of Sciences, where he recognized the errors of some theologians of past centuries, without further castigating the ecclesiastical justice of the time which had put Galileo under house-arrest, instead of sending him to prison[65].

2.5. Trials for Witchcraft

On 5 December 1484, Pope Innocent VIII promulgated the bull Summis Desiderantes Affectibus, which led two Inquisitors, Dominicans Heinrich Kramer and Jacob Sprenger, to conduct a cruel witch-hunt in Germany. In 1486, in Strasbourg, the Inquisitors published Maleficarum Malleus (“The Hammer of the Witches”), trying in particular to explain why women are more affected by witchcraft than men. This book, which went through 27 editions between 1487 and 1669, was a manual intended for fighting against the demon, written for the use of inquisitors and judges participating in the fight against witchcraft. Michelet noted in 1862:

The old prisons, the confessors’ manuals for the examination of sins, these were succeeded by Directoria for the examination of heresy, which is the greatest sin. But for witchcraft, which is the greatest heresy, there were Directoria or special manuals, hammers for the witches. These manuals reached their perfection with Sprenger’s Malleus[66]

Legally, the affairs of witchcraft were under the jurisdiction of civil courts and not the Inquisition, but this did not prevent some inquisitors from being able to take part as judges. In effect, in the former Netherlands and in the principalities of Liege and Stavelot-Malmédy, the Nemesis Carolina of Charles V[67] authorized the local courts to arrest, interrogate, and punish by fire those who were suspected of engaging in witchcraft. Everywhere in Europe, civil justice was rampant against witches, in collaboration more or less closely with the Church[68], with a peak between 1550 and 1650. In Germany, in the years 1620 to 1630, the funeral pyres of wizards and witches lit up by the hundreds, whereas:

The reservations expressed in 1631 by the Rhine Jesuit Frédéric Spee, with respect to judicial procedures which lead so many alleged witches to the stake were not taken into consideration[69].

At this time, the mechanism of the civil trial was far from respecting the rights of the accused:

Regardless of the court before which they take place, the mechanism of the process in witchcraft cases was virtually always the same. Things started with “popular gossip,” against a man or a woman. […] this led to an accusation that this man or this woman is a witch or a wizard; a judge intervened, and had the suspect arrested; the process then began. Therefore, the main goal of the judge would be to obtain the confession of the accused. What would he or she admit? Not evil things: the popular gossip, confirmed by the testimony of a few witnesses, was sufficient to establish it. But that he would confess his relations with the devil, because these are the ones who, legally, qualified as witches. […] Most of the trial involved confessions of this kind. […] Additionally, to confirm or supplement the confession, the judge also had the means to administer the test that the accused might have delivered himself over to the demon. This evidence, it is the mark of the Devil, an insensitive point on the body, that a surgeon was working to find by pricking the unfortunate person with a needle. And if he reacted to all the pricks? The response of the judge was ready: The demon comes to the rescue of his creature in concealing his famous mark. […] Since, in fact, the mechanism was in place for any person that it captured almost invariably to be intended for conviction, the torture, finally, served less to overcome the witch than to make him confess his accomplices. […] It is certain that they burned many more witches during this half-century, that of heretics during the previous half-century[70].

Thus the Inquisition, that has so long been criticized, does not need to be ashamed in the face of the cruelty of the civil courts. It should be noted in addition that trials also concerned animals[71], with them being sentenced to death for having killed people or damaged crops[72], but also for the crime of witchcraft[73]! The last death sentences for the crime of witchcraft are recorded around 1679 in France.

2.6. Justice for the « Natives »

In the colonies, voices are heard at the beginning of the 16th century, such as that of Antonio Montesinos, denouncing the abuses committed by Christian settlers against the populations of South America.

In 1537, Pope Paul III officially condemned slavery of the Indians « or of any other people who would be discovered. » This prohibition was respected for some time by Spain, but not by Portugal.

Thirteen years later, the controversy of Valladolid, held in 1550-1551 at the request of Charles V and ecclesiastical authorities, was one of the stages of the legal debate of the time, which finally led to protection of the South Americans, whereas the blacks in Africa and the Indians of North America were reduced to slavery or decimated.

As for the implementation in practice of this positive law in favor of the slaves:

In Mexico, for example, it was the duty of citizens to denounce in the Inquisition and the Audienca any illegal behavior, but this legal protection had little real impact on the institution of slavery. The slave remained entirely at the mercy of his master[74].

On several occasions, the religious who protested against slavery within their order were recalled to the city, like the Jesuits Marcia Garcia and Gonçalo Leite; or excommunicated, like the Capuchins Francisco José of Jaca and Epifanio of Moirans, when they went beyond the mere denunciation of the ill-treatment of slaves, and raised the question of the injustice of the institution[75].

2.7. Justice during the French Religious

After the reformation[76] and the Council of Trent[77], and its gradual adoption by provincial synods, France was shaken by the wars of religion, with bloody episodes, such as the conspiracy of Amboise (1560), Saint-Barthélemy (1572), the Dragonnades[78] and the War of the Cevennes or War of the Camisards[79], despite the truce between the Edict of Nantes (1598) and the Edict of Fontainebleau (1685). At this time royal justice had precedence over religious justice. Among others, one case hit the headlines, namely the Calas case, which Voltaire described as « a trial of intolerance and religious fanaticism.[80].

A graduate in law, Marc-Antoine Calas wanted to become a lawyer, but he faced the anti-Protestant legislation which prohibited the « so-called reformed” from adopting this profession. He then worked in his father’s shop in Toulouse, where he was found dead on 13 October 1761. The investigation did not find the murderer, and his father, Jean Calas, submitted twice to ordinary and extraordinary torture, confirmed that he and his household were innocent , and confessed nothing to Father Bourges who was nearby, except that he wanted to die a Protestant. He called upon God as his witness, and prayed to Him to forgive his judges. But in 1762, the Parliament of Toulouse condemned him to the death penalty. Two years later, an Assembly of 24 overturned the sentence of the Parliament of Toulouse, and ordered an entire revision of the trial. In February 1765, the magistrate David of Beaudrigue was removed, and on 9 March 1765, Jean Calas and his family were permanently rehabilitated unanimously by the local court of appeals[81].

Another topic referred to in the 16th century concerned the practice of some families to dispose of their children, by marrying them off or putting them in a convent against their will.

Although there are many victims in the convents, forced to embrace the religious state, no author has yet written on this subject of common interest[82].

With regard to ecclesiastical justice, the collective memory has retained the case of Marguerite Delamarre, who inspired the anticlerical novel The Religious that Diderot wrote in 1760 and 1780 and which was published posthumously in 1796.

The story was inspired by that of a French nun of the abbey of Longchamp named Marguerite Delamarre, born in 1717 and died after 1790. She gained attention in 1758 for having unsuccessfully appealed to ecclesiastical justice to be released from the cloister where her parents had enclosed her.

 

2.8. French Justice after the Revolution

As the Age of Enlightenment was seeking to liberate itself from ecclesiastical trusteeship, philosophers such as Locke or Montesquieu proposed the theory of the separation of legislative, executive and judicial powers[83]. In addition,

The claim of a separation between administration and justice appeared in the Cahiers de doléances, when they brought up the suppression of the stewards[84].

Accordingly, the French Act of 16-24 August 1790 separated the administrative and judicial authorities and, following the logic of the separation of powers, it forbade the courts from taking part in the exercise of legislative and executive powers.

The ordinary judge cannot intervene in the activity of the administration, under penalty of forfeiture (Art. 13)[85].

In the field of jurisprudence, its application was particularly marked by the Blanco case[86], in which the court of conflicts[87] affirmed both the responsibility of the State for damage caused to citizens by public services, and the competence of the administrative jurisdiction to settle the dispute:

Action brought by Mister Blanco against the Prefect of the Department of the Gironde, representing the State, has for object to declare the state civilly liable, by application of Articles 1382, 1383 and 1384 of the Civil Code, for damage resulting from the injury that her daughter would have received by the fact of workers engaged in the administration of tobacco; considering that the responsibility, which may be the responsibility of the State, for damage caused to individuals by the fact of the people it employs in the public service, may not be governed by the principles which are established in the Civil Code, for the relations of an individual to another individual; that this responsibility is neither general nor absolute; it has special rules which vary according to the needs of the service and the need to reconcile the rights of the State with private rights; that, therefore, under the terms of laws above referred, the administrative authority is the only competent authority to handle this case.

It is necessary to read the work of legal historians, such as Jean-Louis Mestre[88] or François Burdeau[89]  to study in more detail the way in which the law and administrative justice were put into practice after the Revolution, with excessive rules of common law.

2.9. Ecclesiastical Justice after 1917

Administrative Tribunal of the Church, is the subject of many works, such as those by P. Santini[90], J.D. Mc Clunn[91], H Schmitz[92], C. Lefebvre, K. Frederico D’Ostilio[93], Gianfranco Ghirlanda[94], Matthews[95], Edouardo Labanderia[96], John J. Coughlin[97], Niccolo del Re[98], Ignatius Gordon[99],

Canon 1601 of the 1917 Code[100], as well as canons 1552 §2 and 1667 specify the terms and conditions of hierarchical recourse in administrative matters and provided a foundation for the future administrative justice in the Church. Here is an example of a hierarchical recourse dating from 1927, against a refusal of an imprimatur for a book about the stigmatized Bavarian mystic, Thérèse Neumann.

In 1926, Thérèse Neumann was the subject of a positive speech by the Archbishop of Munich, the future Cardinal Faulhaber, but in 1927, the book Das Leid einer Glückseligen[101], which speaks about her, was refused an imprimatur by the bishop of Regensburg. This decision was the subject of a hierarchical recourse to the Roman Curia[102], but it had no positive result because, as Agnes Demazière said[103], « the appeal addressed to Rome by Witt also reflected a challenge to episcopal authority. Traditionally, the Holy Office prefers to leave to the bishop the care to pronounce on the natural or supernatural origin of mystical phenomena, and avoids intervening. When it intervenes, the Congregation aims above all to restore the authority of the bishop in question. The refusal of the imprimatur by the bishop is thus confirmed. » Subsequently, the Holy See, and Pope Pius XI in person, sought to retain Pontifical neutrality on this issue, allowing Diocesan investigations to take place freely, and a free discussion between psychiatric medicine and Catholic religious psychology about the stigmata and the prolonged fast of Thérèse Neumann. At the end of 1937, the Roman congregation sought, however, the transfer to another parish of the parish priest of Konnersreuth, the spiritual director of Thérèse, because it feared an unconscious capacity of reciprocal suggestion[104]. On 13 February 2005, Gerhard Ludwig Müller, bishop of Regensburg, opened her Beatification process, which to date has not been concluded.

 

To return to France, three tensions with Rome have marked the history of the beginning of the 20th century, with regard to Marc Sangnier, of French Action and worker-priests. Without wanting to stir up the past, let us briefly recall the situation of ecclesiastical justice before the period that we propose to study.

To the left of the French political chess-board, Marc Sangnier, is co-founder of Le Sillon (“Le Sillon”).

Le Sillon has intended to achieve in France a Democratic Republic. This is therefore not a Catholic movement, in the sense that this is not a work whose particular aim is to put itself at the disposal of the bishops and parish priests to help them in their own affairs. Le Sillon is therefore a lay movement, which does not mean that it cannot also be a movement that is deeply religious.

This project received first of all the approval of Pope Leo XIII because it enabled many workers to rally to the Catholic Church:

It is a pleasure for me to let you know that the purpose and the goals of Le Sillon have greatly pleased His Holiness[105].

However, the proximity of Le Sillon to the anticlerical parties of the French left led in 1910 to a condemnation of the movement by Pope Pius X. Protesting its commitment to the Church, Marc Sangnier then dissolved the movement and stopped the publication of its review.

A similar scenario occurred to the right of the political spectrum, after Charles Maurras had given a monarchical and anti-Semitic impulse to l’Action française, founded in 1898 at the time of the Dreyfus case. In the 1910’s, it received the blessing of Pope Pius X due to its « immense services rendered to the Church.” In 1926, the movement was condemned, first by Cardinal Andrieux and then by Pope Pius XI, and on 29 December 1926, several books by l’Action française were put on the Index. On 18 June 1939, l’Action française signed a compromise, in which it recognized its past errors and protesting its commitment to the Church. Pope Pius XII granted the movement forgiveness in July 1939[106].

A third tension related to the episode of worker-priests, created in response to the Encyclical Letter Rerum Novarum of Pope Leo XIII:

We are convinced, and everyone agrees, that it is necessary, by prompt and effective action, to come to the aid of men of the lower classes, since they are for the most part in a situation of undeserved misfortune and misery.

From 1942, several priests become workers; very often they denounced their living-conditions, but their attitude did not suit their French Catholic employers, who complained to the bishops and the Roman Curia[107]. On 7 March 1953, Cardinals Liénard and Feltin asked the Master General of the Friars Preachers to send away Fr. Maurice Montuclard; and on 16 March 1953, his article « The Event of Faith » was put on the Index. On 27 May 1953, worker-priests A. Piet (O.P), A. Gauche, and C. Monnier (S.J.) had to leave their diocese. On 27 July 1953, Cardinal Pizzardo prohibited internships at the factory for all the seminarians. On 30 and 31 July 1953, Frs. Avril and Liégé were summoned by the General Curia of the Order of Preachers to Rome. On 29 August 1953, the Curia sent out a notice regarding the gradual withdrawal of religious worker-priests. On 6 September 1953, the seminary of the French Mission was closed. On 11 November 1953, Fr. Feret was brought before the Holy Office. On December 26, 1953, Cardinal Feltin received the Jesuit priests-workers, and they left their jobs the following day. On 7 February 1954, Fr. Avril, Prior Provincial of the Dominicans, resigned. On 8 February 1954, Fr. Chenu was exiled to Rouen and lost his privileges of Master in Theology, Fr. Feret interrupted his teaching in Paris, Fr. Boisselot left Paris and ceased to be the Director of Cerf, Fr. Yves Congar was exiled[108]. On 1 March 1954, the Vatican put an end to priest-workers. On 27 April 1954, the Plenary Assembly of the episcopate published a pastoral statement on social matters for the use of the clergy.

These positions of the Church in the face of worker-priests were relayed by the press[109], and gave rise to misunderstandings recounted by many publications[110]. On the dogmatic and ecclesiological plane, the hard position of the Church must be interpreted in light of the context of the historical politics of the time, marked by the Cold War and by the encyclical Quadragesimo Anno (1931), in which Pius XI condemned the socialist doctrine in abrupt terms: « No person can at the same time be a good Catholic and a true socialist” that Pope John Paul II explained later in Centesimus Annus (1991).

The fundamental error of socialism is of an anthropological nature, that is to say that socialism considers the individual as a simple element, a molecule of the social organization, so that the good of each one is entire subordinate to the operation of the economic and social machinery.

On the canonical plane, publications relating to the worker-priests highlight the limits of hierarchical recourse at the time[111]. They may have contributed to the major change introduced by the Second Vatican Council, for better taking into account of the rights of the faithful. Regardless of the political aspect, the preconciliar ecclesiology posed problems, as Cardinal Robert Sarah himself tells us, in his story of 1966 when he was a seminarian in France:

During the holidays, we worked on farms or in workshops to earn a little money. [Our bishop] showed intransigence in the management of the amounts that we earned. He did not want us to be able to keep a penny of our wages. One day, the oldest of us had not respected the rule, and kept the money to buy a motorcycle. […] Our bishop was angry with the whole group, including those who had complied with his instructions, like me. […] I then went through a period of doubt. In deep confusion, I vaguely considered leaving the seminary. I went to see my spiritual director, Fr. Denis, to express to him my disappointment. He said to me: « Listen to me well, Robert. I have known four bishops in Nancy, with their sometimes difficult faults, and their very enlightening qualifications. You will not be a priest for the bishop but for Christ, despite your bishop or together with him. Certainly, it is he who will call you to the priesthood, but you will be a priest for the Church. Today, you must deal with Mgr. Tchidimbo, and tomorrow, you’ll learn how to tame the character of his successor.” The only surprise was that the successor of Mgr. Tchidimbo [Archbishop of Conakry] by the mysterious will of God, turned out to be me…[112].

 

Let us now leave this historical overview to look in greater detail at the period chosen for our research, namely the years 1967 to 2017.

[1] Bruguès (Mgr Jean-Louis op.) Since 2012, Archivist and Librarian of the Holy Roman Church. Church and Memory conference given at Albi on 14 November 2015, http://catholique-tarn.cef.fr/Église-et-memoire-Conference;

[2] Vigano (Mgr Dario Edoardo), statements reported by the Italian Catholic News Agency SIR on 19 July 2017.

[3] The first part of this chapter is mainly composed of contributions by historians of the current law, who wish to remain anonymous.

[4] Francis (Pope), “Fraternal Correction is Exercised with Love and Humility,” Homily at Santa Martha on 12 September 2014.

[5] Gaudemet (Jean), L’Église dans l’empire romain (iv°-v° siècles), Paris, Sirey, 1989, coll. Histoire du Droit et des Institutions de l’Église en Occident, 818 p.; on the legal organization, see in particular pp. 229 and ff.

[6] For the 1917 Code and the result of the historical developments, see the article by P. VALDRINI, in Pouvoirs, 1981.

[7] Mark, 9, 38-39.

[8] Kasper (Card. Walter), L’Église catholique. Son être, sa réalisation, sa mission, Paris 2014, Cerf, p. 230.

[9] Cf. Actes 6, 1-3 ; 1. Tim. 5, 16 ; Jacques 1, 27.

[10] Emefu (Clément Chimaobi), CSSp, « La déontologie du juge ecclésiastique », report of Masters’ research on the history of the canon law, submitted on 7 September 2016 at the University of Paris-Sud and at the Catholic Institute of Paris.

[11] Matthews (Kevin), « The Development and Future of the Administrative Tribunal », Studia Canonica, XVIII, (1984), p. 3-233. See in particular Chapter 3 on the extrajudicial appeal and hierarchical recourse..

[12] Hefele (Charles Joseph) A history of the Christian Councils (Trans W.T. Clark), 2nd ed. revised, Edinburgh, T. & T. Clark, 1894-1896, vol. 3, p. 395, Translated from English then from French.

[13] Gaudemet (Jean), Église et cité, histoire du droit canonique, Paris, Cerf, Montchrestien, 1994, p. 112.

[14] Augustin (Saint) Sermon à Caillau, 11, 5 ; M. A. 250-251 in Saint Augustin, Le visage de l’Église, p. 311-312.

[15] Vauchez (André), Les Hérétiques au Moyen Âge. Suppôts de Satan ou chrétiens dissidents ? Paris, CNRS éditions, 2014, p. 35.

[16] Ripoll (Jean de), Letter to the abbot-bishop Oliba, cited by André Fleury in Vie de Gauzlin, abbé de Fleury, R. H. Bautier & G. Labory (ed.), Paris 1969, p. 18, cited by André VAUCHEZ, op. cit. p. 35 note 66.

[17] Vauchez (André), op. cit.  p. 35.

[18] That of King Robert, concerning the heretics of Orleans.

[19] Vauchez (André), op. cit. p. 36.

[20] Idem, p. 39.

[21] Idem, p. 40.

[22] In particular, cases of simony (trafficking in spiritual property), Nicolaism (« incontinence » of the clergy) or of investiture of clerics by the laity.

[23] Anaclet II became antipope after the contested election of Innocent II. The schism was ended in 1238 when Victor IV, successor to Roger of Sicily, who had been the defender of Anacletus II, took the side of Innocent II.

[24] Paravicini Bagliani (Agostino,) « L’Église romaine de Latran I à la fin du XIIème siècle », in Histoire du Christianisme : Apogée de la papauté et expansion de la chrétienté, under the direction of J-M Mayeur et al. Paris, Desclée, 1993, Volume 5, p. 201/973.

[25] Idem, p. 61, note 42.

[26] It should not be confused with the Spanish Inquisition, which was in fact a court of the King of Spain, against which the popes did not hesitate to protest.

[27] Corpus iuris canonici X, 5, 7, 14.

[28] Dedieu (Jean-Pierre), L’inquisition, Paris, Cerf, 1987, p. 8/126.

[29] Amato (Mgr Angelo), then Secretary of the Congregation for the Doctrine of the Faith, « The Congregation for the Doctrine of the Faith has always been a tribunal » in Zenit, April 1, 2004.

[30] Committee of the Great Jubilee of the Year 2000, Theological-Historical Commission, The Inquisition, Acts of the International Symposium, Bibliotheca Apostolica Vaticana, 2003, coll. Studi e testi, No. 417, 783 p.

[31] Veneu (Bruno), « Y a-t-il une hérésie inquisitoriale ? »,  The Inquisition, Acts of the International Symposium, Bibliotheca Apostolica Vaticana, 2003, coll. Studi e testi, No. 417, p. 491/788.

[32] Ratzinger (Cardinal Joseph) Declaration on 03 March 2005, on the German TV channel ARD, about his title of « Modern Grand Inquisitor ».

[33] Palès-Gobilliard (Annette), « Pénalités inquisitoriales au XIVe siècle,” in Crises et Réformes dans l’Église (Actes du 115e congrès national des sociétés savantes, Avignon, 1990), Paris, 1991, p. 143-154: « The analysis of the archives of Bernard GUI showed that in 16 years (1307-1323) of exercise in Toulouse, the Inquisition delivered 501 sentences and 243 remissions of sentence, usually to end a period of detention. More specifically, it ordered 29 death sentences, 80 condemnations to be burned at the stake with respect to the number of bodies exhumed, 13 sentences of close confinement (prison farm), 231 sentences of open confinement (house arrest), and 107 defamatory penalties. The most important burning at the stake, ordered on 5 April 1310, resulted in 17 victims. »

[34] The Massacre at Beziers caused between 5,000 and 10,000 deaths.

[35] Berlioz (Jacques), Tuez-les tous, Dieu reconnaîtra les siens : la croisade contre les Albigeois vue par Césaire de Heisterbach, Toulouse, Loubatières, 1994, 135 p.

[36] Vauchez (André), Les Hérétiques au Moyen Âge. Suppôts de Satan ou chrétiens dissidents? Paris, CNRS éditions, 2014, 309 p.

[37] This information is from the parchment of Chinon kept in the Vatican Secret Archives, and studied by the Italian historian Barbara Frale, then published by the Vatican in 2007. The conviction and execution of the Templars at the stake was mainly the responsibility of King Philippe IV “le Bel,” and not of the Pope and the Church.

[38] Garuti (Adriano), « La santa romana e universale inquisizione : strutture e procedure », in: L’inquisizione. Atti del Simposio Internazionale Rome, Biblioteca apostolica vaticana, 2003, coll Studi e testi, No 417, p. 383, traduit de l’italien par l’auteur.

[39] Idem, note 33. Cf. Archivio della Congregazione della Dottrina della Fede. (ACDF)

[40] Kasper (Card. Walter), L’Église catholique. Son être, sa réalisation, sa mission, Paris 2014, Cerf, p. 245.

[41] Foyer (Jean), Histoire de la justice, PUF, 1996

[42]  Collective, Encyclopédie Larousse, Louis IX, consulted on 7 January 2016.

[43] The “Quarantine of the king” was a period of 40 days established by Philippe Auguste or Philippe le Hardi, and renewed by Louis IX in 1245. It enabled the avoidance of private wars, by establishing a mandatory period of reflection, requiring the two sides to wait for 40 days before settling a conflict.

[44] The ordeal is a form of judicial procedure, of religious origin, also called judgment of God. It consisted of a judicial test used in the Middle-Ages to establish the innocence or the guilt of the accused.

[45] Recorded as of 1342, the supplications (requests of any kind) addressed to the Pope constitute one of the oldest sources in the Vatican Archives. […] It is essential not to isolate the pontifical sources of requests addressed to other sovereign powers of medieval Europe, Italian cities or kingdoms of France, Spain or England. The comparison of the archives expressing the requests of subjects to their Prince in the West at the end of the Middle Ages shows the existence of a particular form of exercise of sovereignty that may be termed « Government by Grace. »  Cf. Millet (Hélène) Suppliques et requêtes : le gouvernement par la grâce en Occident : 12e-15e siècle, Roma: École française de Rome, 2003, Collection de l’École française de Rome 310, 435 p.

[46] Louis IX: If it happens that you become King, take care to have the qualities agreeable to a king; that is to say, be fair, so that whatever happens, you did not stray from justice. […] Prefer to support the poor against the rich until you know the truth; and when you know, do what is just. […] If you learn that you possess something wrongly, return it immediately, however great this thing may be, land, money or other property.

[47] Canonists chose as their patron Saint Raymond of Pennafort, who in 1234 compiled the Five Books of Decretals, by order of GREGORY IX.

[48] In Breton, Zant Erwan.

[49] Le Guillou (Jean-Paul), French translation of the investigation conducted at Tréguier « On the life, morals and miracles of Yves Hélory of KERMARTIN in view of his canonization, » presented on 4 June 1331 to Pope John XXII. Saint Yves, ceux qui l’ont connu témoignent, ceux qu’il a guéris témoignent, 2nd édition française, Saint Brieuc, Teck impressions, April 2003, 160 p.

[50] Born in Minihy in Tréguier in 1253, during the reign of Saint Louis; died two kilometers from Tréguier, 19 May 1303.

[51] Fuit homo bone vita, fuit homo honeste.

[52] de Kerc’hoz (Jean), Clerk and jurist, parishioner of Pleubian, diocese of Tréguier, 90 years old. Witness No. 1, p. 15-16.

[53] Jaquet, Son of Rivallon, parish of St. Peter of Louannec, aged 50 years, witness No. 43, p. 63.

[54] de Trégroin (Darien), Rector of the Diocese of Tréguier, aged over 50 years, witness 47, p. 68.

[55] Brother  Pierre, religious, Abbot of the Monastery of Bégard, of the Order of Citeaux, in the diocese of Tréguier, 50 years old, witness No. 19, p. 37-38.

[56] Thomas de Ploulec’h (Alain), diocese of Tréguier, 70 years old. Witness No 31, p. 49, 50.

[57] de Croyfrooc (Jean), Esquire, parish of Ploubezre, diocese of Tréguier, witness No. 34, p. 53.

[58] Toulefflam (Hamon), of the parish of Plestin in the diocese of Tréguier, Hermit of good reputation, witness No. 20, p. 40.

[59] Menguy (Yves), of the parish of Louanec, diocese of Tréguier, witness No. 35, p. 63.

[60] Portier (Raoul), cleric of Lanmeur, diocese of Dol, witness No 12, p. 30 and No 13, p. 31.

[61] Following are the persons, for whom several witnesses have testified:

  1. Alain Guigon, son of Alain and Adénoro Guidon(witnesses 53 to 55)
  2. Yves Rivallon Cohozer, native of Plouguiel, who died in Angers (witnesses 56 and 57),
  3. Théophanie, daughter of Alain and Mobilia DE ROSCNEZNE, of the parish of Ploelan (Witnesses 58 to 60)
  4. Guenutera, daughter of Rivalon MAGUET, of the parish of Saint Scilien (diocese of Léon), (Witness 61)
  5. Amicie, daughter of Agnes and J. BRANCIE, of the parish of Pommerit le Vicomte (diocese of Tréguier), (Witness 62)
  6. Henri Olivier or DE MOSTIER of Léon, parishioner of Plouvenez (diocese of Quimper) (Witnesses 63 and 64)
  7. Alain, son of Cadioc Scalart, parishioner of Pleubian (Witnesses 65 to 67)
  8. Raymond, son of Alain LE ROUX, parishioner of Saint Briac (Bourbiac) diocese of Tréguier, (Witnesses 68 to 70)
  9. Rolland, son of Geoffroy, of the parish of Pédernec, diocese of Tréguier (Witnesses 71 and 72)
  10. Aymeri, son of Hamon GOGEESAY, of the parish of Lannion, diocese of Tréguier, (Witnesses 73 to 75)
  11. Guillaume, son of Alain GUIDOMAR, of the parish of Gazvallon, (Plouescat-Guerrand), diocese of Tréguier, (Witnesses 76 to 78).

[62] The last time a book was put on the Index was in 1961, during the Pontificate of St. John XXIII.

[63]  A book was published in Florence, entitled Dialogue Concerning the Two Chief World Systems, in which you defend the opinion of Copernicus. As a sentence, we declare that you, Galileo, have rendered yourself suspect of heresy, for having held this false doctrine of the movement of the earth and the repose of the sun. Consequently, with a sincere heart, it is necessary that you abjure and deny before us these errors and heresies contrary to the Church. And in order that your great fault not remain unpunished, we order that this dialogue be prohibited by public edict, and that you be imprisoned in the prisons of the Holy Office.

[64]  I, Galileo, son of the late Vincenzio Galilei of Florence, seventy years of age, brought here to be judged, kneeling before the very distinguished and revered Cardinal General Inquisitors against all heresy in Christianity, having before my eyes and touching with my hand the Holy Gospels, swear that I have always held to be true, and still hold to be true, and with the help of God will hold as true in the future, all that the Holy Catholic and Apostolic Church says, presents and teaches. However, since I have been sentenced by injunction of the Holy Office to completely abandon the false belief that the sun is at the center of the world and does not move, and that the earth is not the center of the world and moves, and not to defend or to teach this erroneous doctrine in any manner whatever, orally or in writing; and after having been warned that this doctrine is not consistent with what the Holy Scriptures say, I wrote and published a book in which I dealt with this condemned doctrine and presented it with very pressing arguments , without refuting them in any way; for which I have been held to be highly suspected of heresy, for having professed and believed that the sun is the center of the world, and is without movement, and that the earth is not the center and moves. I abjure and curse my errors with a sincere heart and a faith that is not weak.

[65]  Similarly the new science, with its methods and the freedom of research that it implies, required theologians to question their own criteria of interpretation of Scripture. Most have not been able to do so. …/… Galileo, a sincere believer, has shown himself more perceptive on this point that his theologian-opponents.

[66] Michelet (Jules), Histoire de France – tome 7 Renaissance

[67] Code of Criminal Justice promulgated by Charles V in 1532

[68] Bennasar (B), L’inquisition espagnole XVème-XIXème siècles, Paris, 1979, p. 233-234 : The Spain of the Inquisition escaped the great witch hunt.

[69]  Vénard (Marc), « La fin d’une époque » in Histoire du Christianisme : l’Âge de raison (1620-1750), volume 9, under the direction of J-M ; Mayeur et al. DESCLEE, 1997, p. 1149/1214.

[70] Vénard (Marc), « La hantise du diable », in Histoire du Christianisme, le temps des confessions (1530-1620), volume 8, under the direction of J-M ; Mayeur et al., Paris, Desclée, 1992, p. 1038-1039/1236.

[71] Chauvet (David), La personnalité juridique des animaux jugés au Moyen Âge XIIIe-XVIe siècles, L’Harmattan, 2012.

[72] The cases involving the animals were processes in which the accused was an animal who had committed an offense, a crime or injury just like a human being, who in principle was the only subject of law who could be held accountable. Similarly well, in the Middle Ages and well after, cows and pigs were sentenced to the gallows or the stake. The Church likewise extended its excommunication of men to animals: rats, flies, grasshoppers, moles, fish; any wildlife could be subject.

[73] Voltaire says that a horse and his master were brought to trial in 1610, both accused of casting spells. Siècle de Louis XVI, Chapter II.

[74]  Deslandres (Dominique), « Le christianisme dans les Amériques », in Histoire du Christianisme : l’Âge de raison (1620-1750), volume 9, under the direction of I-M; Mayeur et al, Desclee, 1997, p. 711/1214.

[75]  Deslandres (Dominique), op. cit. p. 714/1214.

[76]  Luther (Martin) published his 95 Theses in 1517.

[77]Convened in 1542, it took place between 13 December 1545 and 3 December 1563.

[78]   Arnaud (Florent), Le Grand Livre de l’Histoire du Monde des Hommes. Tome IV, Paris, 2010, Lulu.com 276 p. (p. 231) : After the Edict of Fontainebleau which revoked the Edict of Nantes, Louvois wrote to the stewards of Limousin and Poitou to increase the protestants’ taxes: « If, following a distribution where they should pay ten, they should give twenty.” It was particularly obeyed by René de Marillac, steward of Poitou, who encumbered the Protestants both with new taxes, and with requirements that they lodge soldiers. The new converts were, in contrast, exempt from both. Every excess was encouraged, the effect of this kind of persecution within each family exceeded every expectation of Louvois. Thousands of Protestants declared themselves to be Catholics, while those of Aunis and Saintonge emigrated en masse.

[79]  Uprising of peasant Protestants in the Cevennes and Bas-Languedoc, during the reign of Louis XIV.

[80] Voltaire, Traité sur la tolérance, Paris, 1763.

[81] Portal of justice : www.justice.gouv.fr/histoire-et-patrimoine-10050/proces-historiques-10411/laffaire-calas-22774.html

[82] Brunet de Brou, La religieuse malgré elle. Amsterdam 1720, Preface, p. 7.

[83] Montesquieu, L’esprit des lois, XI, 6; e. xix, 27. Labandeira observed that Montesquieu made no reference to the administrative or executive function as it is understood today.

[84] Mestre (Jean-Louis), « L’histoire du droit administratif » in Traité de droit administratif, under the direction of Pascale Gonod, Fabrice Melleray and Philippe Yolka, Paris, Dalloz, 2011, tome 1, 841 p. (p. 13)

[85] The act of 16-24 August 1790 (Articles 13) and the Decree of 16 Fructidor Year III (2 September 1795) prohibited the judicial courts from « disturbing, in any manner whatsoever, the operations of the administrative body.

[86] A child, on the public road in front of the tobacco warehouse of Bordeaux, was hit by a wagon pushed by some employees of the State, and he had to undergo an amputation. The father of the child brought an action in damages against the said employees and against the State jointly and severally, as civilly responsible for the fact of its agents by application of Articles 1382, 1383, 1384 of the Civil Code. The conflict was severe, and the Court of Conflicts attributed to the Administrative Court the jurisdiction to hear the dispute.

[87] Court of Conflicts, case No. 00012 published in Recueil Lebon.

[88] Mestre (Jean-Louis), Introduction historique au droit administratif français ; Paris : Presses universitaires de France, 1985 ; in-8°, 294 pages [Collection Droit fondamental].

[89] Burdeau (Francis), Histoire du droit administratif : de la Révolution au début des années 1970, Paris, PUF, 1998, 512 p.

[90] Santini (P.), De referendariorum ac Signaturae historico-iuridica evolutione, Romae, 1945.

[91] Mc Clunn (J . D.), Administrative Recourse: A Commentary With Historical Notes, Washington, 1946.

[92] Schmitz (H.) « Appelatio extraiudicialis, Entwicklungslinien einer kirchlichen Gerichtsarbeit über die Verwaltung im Zeitalter der klassischen Kanonistik » in Münchener theologische studien, III Kanonistische Abteilung, 28 Band, München 1970.

[93] Ostilio (Frederico D’), Il diritto amministrativi della chiesa, Rome, Libreria Editrice Vaticana, 1995, 580 p.

[94] Ghirlanda Gianfranco, Introduzione al diritto ecclesiale, Roma, GBP ed. 2013, p. 72-86/223.

[95] Matthews (K.), « the Development and Future of the Administrative Tribunal », Studia Canonica 18 (1984) 1-233.

[96] Labandeira, (Edouardo) « La Signatura apostolica y los Tribunales Administrativos », in « IC » 42, 1981, p. 665-772.

[97] Coughlin, (J.J.) ofm, « The historical development and current procedural norms of administrative recourse to the Apostolic Signatura”, in Periodica 90 (2001) p. 455-496; 661-690.

[98] Del Re (Niccolo) La Curia romana. Lineameti storico-giuridici, Libreria Editrice Vaticana (collana Diritto canonico), 1998, 708 p.

[99] Gordon (Ignatius S.I.), « Normae speciales supremi tribunalis signaturae apostolicae: editio aucta introductione, fontibus et notis,” Periodica v. 59, fasc. 1, 1970, p. 75-113. In his article published in 1970, Gordon introduced the publication of special standards of the Tribunal of the Apostolic Signatura, previously approved on March 23, 1968, but not yet promulgated officially. He distinguished the following stages:

The initial creation:

  1. Legal secretaries in the 13th century,
  2. The Office of the Signatura in the 15th century,
  3. The double Signatura of the 16th to the 20th century, which introduced a double history:

With regard to the Signatura of Justice, the main steps are the following:

  • Its creation by the Constitution Cum Nuper Nos of Pius IV, on July 1, 1562, published in Bullarium Romanorum, t. VII, p. 224-226,
  • Its development during the 16th and 17th centuries, recounted by different authors,
  • Its suppression in 1809 by Napoleon, when he invaded the Papal States and integrated them into the Napoleonic Empire, governed by the eponymous Code,
  • Its provisional restoration in 1814, when Latium and Umbria were returned to the Pope,
  • Its various reforms in the period 1814-1870,
  • Its final suppression in 1870.

With regard to the Signatura of Graces, the main steps are the following:

  • Its creation in 1588 by Sixtus V,
  • Its developments, more or less marked, until 1839,

The Apostolic Signatura, reunified through the Constitution Sapienti Consilio of Pius X in 1908.

[100] This canon, repeated in Article 16 of the proper law of the Roman Rota, was the subject of an authentic interpretation.

[101]  Witt (Leopold), Das Leid einer Glückseligen, Waldsassen 1927.

[102]  Angerer (A.), Letter to Pius X of 1 June 1927 (ACDF, SO, Dev. V. 1927 7, 1).

[103]  Desmazières (Agnès), « La gestion ecclésiale des phénomènes mystiques sous Pie XI. Le cas Thérèse Neumann », in Pie XI et la France : L’apport des archives du pontificat de Pie XI à la connaissance des rapports entre le Saint-Siège et la France, Rome, Jacques Prévotat ed., Collection de l’Ecole française de Rome, 2011, 481-493.

[104]   S.S. Congregation of the Holy Office, « Intorno al caso di Teresa Neumann. Relazione di una visita a Konnersreuth,” March 1938 (ACDF, SO, Dev. V. 1927 7, 125), cited by Agnès DEMAZIÈRES, in op. cit.

[105] Rampolla (Cardinal) www.civitas-institut.com/content/view/305/28/

[106] Cf. Sérant (Paul), Les déchirements des catholiques français, Paris 1989, Librairie Perrin, p. 94-116/283.

[107] Loew (Jacques): Let us not forget the very great influence of great, intelligent leaders, organized and unbeatable, from the economic point of view. They will defend themselves [against strikes involving the worker priests…] They will come to Rome. […] It is necessary to be aware of our apostolic imprudence, whether social or doctrinal. It is without doubt disgusting, but at least we know everything (and even a little more than that).

[108] Yves Congar (1904-1995) was a Dominican, sanctioned and then rehabilitated, and an expert on the Second Vatican Council.  He was made a Cardinal by Pope John Paul II in 1994.

[109] On 17 February 1954, after having learned of the firing on 8 February, the Canard Enchaîné published an article entitled « Rappel à l’Ordre de saint Dominique, » noting that « it is sufficient that ‘Rivarol’ or ‘Aspects de la France’ libels this or that vaguely Catholic liberal, for that article to be taken for granted, used as proof and inserted into the record, and it can serve as evidence. Any accused, provided that he is liberal, is declared a guilty. Just like during the Inquisition. And now it is expected that the apostolic wrath will fall on the laity. Contrary to belief, the French episcopate would not in fact be innocent not in the history of the Dominicans. The disciplinary measures that have involved the abovementioned persons would have been denounced in part as a result of a petition, in which Msgr. Richaud, Archbishop of Bordeaux, took the initiative.” .

[110] Cesbron (Gilbert), les saints vont en enfer, Collonge (André), alias Gardey (Bernard), prêtreouvrier dominicain, Le scandale du xxe siècle et le drame des prêtresouvriers, Paris, Olivier Perrin, 1957, Poulat Emile,   Les prêtres ouvriers, naissance et fin.  ; Leprieur  (Francis), Quand Rome condamne  Keck (Thierry) Jeunesse de l’Église: 1936-1955, aux sources de la crise progressiste en France ; Suaud (Charles) et Viet-Depaule (Nathalie),  Prêtres et ouvriers. Une double fidélité mise à l’épreuve 1944-1969. 

[111] Valet (Paul), “During that period, I used the term ‘cruel stepmother’ to describe the conduct of the Church toward worker-priests. The term was inappropriate because in this case, the worker-priests were not only deprived of maternal love, they were abused. Some were even beaten: even those who submitted still have scars. The process against them was a process at their expense. The lawyers who were able to defend them, Fathers Féret, Liégé, Chenu, whom I had the privilege of meeting, were reduced to silence and cast aside. » Valet (p. 75).

[112] Sarah (Cardinal Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 58/420.