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.

Administrative justice

After the Council clarifies the rights and obligations of the Catholic faithful, Pope Paul VI creates the second section of the Supreme Tribunal of the Apostolic Signatura on August 15, 1967, in order to settle » The disputes arising from the exercise of ecclesiastical administrative power  » . The year 2017 marks the jubilee of the administrative justice of the Catholic Church, but who knows it?

By this work authorized by the ecclesiastical authority, and by the site www.canonistes.org which accompanies it, the author aims at six objectives:

  1. to promote canon law and justice in the Church;
  2. to remind the hierarchy of the Church and the Catholic faithful of their respective rights and obligations, as well as the means of defending them;
  3. to present the progress made by the justice of the Catholic Church in fifty years of practice;
  4. to illustrate its practical implementation through a hundred examples of conflicts, friendly resolutions and case law;
  5. to make a scientific contribution for the world of the canonists, from an unpublished database on administrative jurisprudence;
  6. to contribute to social justice by promoting the administrative justice of the Church, by helping people in difficulty and by proposing ways of improvement.

Table of content:

  1. Preface and introduction
  2. Historical Perspective
  3. Principles, Organization and Procedures
  4. The Sources of Jurisprudence
  5. Justice for the Laity
  6. Justice for the Clergy
  7. Justice for Religious
  8. Administrative Justice in the Face of Charisms
  9. Administrative Justice for Dicasteries
  10. Conciliation and Mediation
  11. Prospects for Development
  12. Final Conclusions

ISBN 978-2-9561888-1-0 9782956188810

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