(Extracts of the book Administrative Justice in the Catholic church, by Yves Alain Ducass, Paris 2018, 374 p).
In the strict sense, the title should be « justice for the institutes of consecrated life by the profession of the evangelical counsels, the societies of apostolic life as well as their members, » but this title is long and also does not cover all the varieties of charisms and of rights, since there are religious and secular institutes, active and contemplative religious, hermits etc. We will therefore use the generic terms « religious » for members of religious institutes, and « consecrated » understood in the broader sense, for the whole of the persons referred to in the title above.
In the first place, let us express our deep gratitude to those of our contemporaries who devote their lives to intercession and selfless activity for the world and also for us, in the consecrated life within the Church. They are many:
In 2014, there were 54,559 professed religious non-priests in the world, while there were 682,729 professed religious, nearly [270,000] (39%) in Europe, 177,000 in America and 170,000 in Asia.
And here is their distribution in France:
After the decree of the Second Vatican Council Perfectae Caritatis, on the renovation and adaptation of the religious life, the magisterium devoted their five great specific texts, while Pope Francis reminds his workers about this:
Those who are disobedient must learn the beauty and the need of obedience, the tranquillity of soul that it provides […] In fact, as the saints and doctors of the Church teach, it is obedience which truly forms religious.
The Code of Canon Law devoted to religious a third part of its Book II, with 158 canons concerning institutes of consecrated life (c. 573 to 730) and 19 canons relating to societies of apostolic life (c. 731 to 749). Authors such as Jean Beyer have published several books of commentary on these canons, without however dealing with the applicable jurisprudence from the 177 corresponding canons.
The rights and obligations of religious actually result from the combination of five different rights, and several courts whose respective competences are specified to the Canon 1427:
Compared to the simple faithful, religious who have taken the vow of obedience are subject to additional deprivation of freedom, like the employees of a business. Here is an example:
Upon his return from Sweden, Pope Francis responded to journalists about the charismatic renewal. He remembered his own reluctance during the birth of this movement, when he imposed specific rules on the Jesuits he headed: « One of the first opponents in Argentina was myself – because I was Jesuit provincial at that time (…) and I prohibited the Jesuits to have any connection with them. And I said publicly that when in a liturgical celebration it was necessary to do a liturgy and not a « samba school » (escuela do Samba). That is what I said. And today I think the opposite. ».
In general, religious accept the restrictions imposed by their superior as a mark of love, but sometimes, rightly or wrongly, they do not understand or do not recognize these restrictions. Elizabeth McDonough made a synthesis of their rights, such as provided for by the Code of Canon Law:
The Code of Canon Law directly or indirectly expresses very few rights for members of religious institutes; on the other hand, many rights their are limited as a consequence of their religious profession. As well, the only three rights clearly identified for the religious seem to be:
When tensions arise inside a religious community, the religious concerned must respect their vow of obedience, knowing however that they are not required to obey an order if it is illegal or contrary to the spirit and the charism of the institute, as was indicated in particular in the Apostolic Exhortation Evangelica Testificato, on the renewal of religious life:
And yet, is it not possible to have conflicts between the superior’s authority and the conscience of the religious, the « sanctuary of a person where he is alone with God, whose voice echoes in the depths of his being » (Gaudium et Spes 16)? Need we repeat that conscience on its own is not the arbiter of the moral worth of the actions which it inspires? It must take account of objective norms and, if necessary, reform and rectify itself. Apart from an order manifestly contrary to the laws of God or the constitutions of the institute, or one involving a serious and certain evil—in which case there is no obligation to obey—the superior’s decisions concern a field in which the calculation of the greater good can vary according to the point of view. To conclude from the fact that a directive seems objectively less good that it is unlawful and contrary to conscience would mean an unrealistic disregard of the obscurity and ambivalence of many human realities. Besides, refusal to obey involves an often serious loss for the common good. A religious should not easily conclude that there is a contradiction between the judgment of his conscience and that of his superior. This exceptional situation will sometimes involve true interior suffering, after the pattern of Christ Himself « who learned obedience through suffering (Heb 5, 8).”
The Apostolic Exhortation evokes the salutary suffering between the point of view of a religious and that of his superior, who must maintain ecclesial communion with appropriate penalties, in compliance with the rules of law. Normally, the rights and obligations of consecrated persons are respected within the religious institutes or secular of apostolic life themselves, by the fact that the superiors exercise their authority with « firmness without rigor and sweetness without weakness,” in respecting the law and human persons, in accordance with canons 617 et 618. The question nevertheless arises of what happens when the right is not respected by the religious or by his superior.
In her doctoral thesis, Scholastica Empela Ankonelle referred to situations where a religious community becomes a place suffocating, of suffering and despair:
Community life is visibly marked by behavior contrary to what is meant by a community united in the name of the Lord […] Where superiors or the authorities tend to promote their ethnic group to the detriment of the general interest, […] the indifference of some and of others, the denigration, the negative criticism, idleness and the jealousy, the defamation and the lack of confidence make the brotherhood a yoke difficult to bear.
She considers that:
The crisis of authority influences that of the vow of obedience, by the lack of awareness of the rights and obligations of both.
Michael Rosinski observed that conflicts within all human groups are normal, but superiors of religious institutes are not always well trained to resolve difficult cases.
Superior of religious institutes rightly have discretionary authority to address matters, including disciplinary matters, about which the law is silent. Rarely however, do superior in religious life have adequate experience of training to address complex disciplinary cases in ways that follow the relevant law, respect the right of all parties, and ensure the safety of potential new victims.
More generally, Josu Mirena Alday refers to six different ways of living one’s membership in a religious institute marked by problems of authority and of fraternal life:
Also here, she does not mention explicitly making recourse to the justice of the Church in the history of the Sisters of Saint Therese of the Child Jesus in Lisala (DRC), to strengthen their identity as consecrated persons, do justice and bring peace.
Still, there are many cases of religious who, rightly or wrongly, feel harassed in their own religious community, and they look to their superiors or to a canonist to find support in order to objectify their situation. Here is first of all an interesting case where one sees a superior, before becoming Pope, apply sanctions to protect the common good of the community, respecting the right of defense of the religious concerned.
When he was provincial superior of the Jesuits of Argentina, Jorgse Mario Bergoglio imposed sanctions at the end of the 1970’s, against the Jesuit Fathers Orlando Y. and Francisco J. who experimented with a form of liberation theology deemed unacceptable. He formally recalled them, ordering them to move elsewhere and to dissolve the community that they had created. Before their refusal, he reiterated his order but they made objections of conscience. Thus Bergolio contacted the General of the Jesuits in Rome, Pedro Arrupe, who responded that both of them had to obey.
In this example, one almost has the impression that it is the Provincial Superior who made a hierarchical recourse against the objection of conscience of Jesuits religious. Yet the most frequent case is recourse of religious against decisions of their superior that they consider illegal, or at least illegitimate. In fact, there are cases where a religious undergoes harassment, theoretically illegal under French law, but often he endures it because of his vow of obedience. In such situations, recourses are rare, since in general, the conflict ends by a submission or an amicable agreement, dismissal of the religious, or by his transfer to another place, as in the two examples below reported by Marco Politi:
Since the 1970’s, 152 Via Ostiense has been the seat of the community of Saint Paul, formed after the dismissal of the former abbot-bishop of the old monastery of Saint Paul Outside the Walls, Giovanni F., for having denounced the involvement of the ecclesiastical hierarchy in real estate speculation in Rome.
In 1995, the Congregation for the Doctrine of the Faith imposed two years of silence on Sister Ivone G., ex-professor of theology at the University of Sao Paolo in Brazil: prohibition of teaching, publishing, speaking in public and giving interviews. She is currently exiled in Belgium.
We do not have the information or the experience necessary to discuss justice inside religious institutes, and such is not our subject. We speak, however, of the importance of preventative measures to avoid conflicts:
The Bishop of Nouakchott (Mauritania) celebrated every day his Mass in a parish or different religious community, so that he regularly attended the religious communities of his episcopal city. Thus, he knew enough to feel a possible tension between members. In such cases, he took the time to sit down to identify the problem with the persons concerned and resolve the problem before it festered. With regard to the religious houses located in his diocese extended over a million km², he keeps himself informed of what is happening, welcoming visitors of any kind who come.
In other cases, the superiors are not as vigilant and situations fester, and then religious make an appeal to higher authorities:
In Africa, a contemplative monk discovered illegal trade between the superior of the convent and the ladies of the city, associated with transgressions of ecclesiastical laws with respect to the temporal administration of goods and child pornography. Serving as a member of the Superior Council, in accordance with the suffrage of the Community, he asked for clarification and respect for the Constitutions, but his requests were ignored. He dissociated himself explicitly from these practices involving several members of the community, then the supreme moderator asked him to be patient. In March 2016, the Abbot General made a canonical visit, but the complaints of the monk were apparently ignored, and he was exiled to another community in the religious order, on the grounds of « disrupting the peace.” With the help of Canonists without Borders, the religious tried to objectify the law and justice in the spirit of teaching on authority and obedience, and considerations on the possibility of making recourse, as discussed in Chapter 12 of this book.
If preventative measures are not implemented or are not sufficient, and tensions are not resolved inside the institute, let us see whether the organs of ecclesiastical justice manage to resolve these difficulties. This situation usually occurs when a religious has no more hope of resolving the conflict through dialogue, for example, when after years of consecrated life, where he has given all of himself, threats are made of temporary dismissal (exclaustration) or final dismissal, and this threat begins to be put into execution.
This does not happen often because in general, religious are not familiar with their rights, and even less with the means to defend them. In addition, superiors sometimes prevent the religious from making external contacts when they have the impression of an unjust situation in their community, as shown in the motion to expel a Brazilian religious, containing the following clause prohibiting the religious of continue its contacts with canonists without authorization:
I ask you to ask the normal permissions (for departures, moving, external contacts…) to Father…
In other cases, abuse seem to come not from superiors but of religious as seen in the case below:
A Carmelite sister suffered from clinical depression in a convent, but then she seemed to recover and made her final vows. Shortly thereafter, she left the convent and her relatives were given to think that the Carmel was the cause of her illness. Therefore they sued the Carmel in civil court, claiming damages and substantial interest, which the judge awarded them. The amount of the settlement was a significant sum for the Carmel, and so as a result, the sisters who remained faithful have lived in great poverty ever since.
In this case, canon law applies to the acceptance of the final vows of the religious, and to the departure of the religious from the convent; but it may be asked whether, in the case mentioned, it was applied correctly. The law of the State (labor law) is applied to relatives of the former religious in relation to her convent. In such cases, one may ask if the superiors were not too intransigent with the religious when she was still in the convent; or, alternately, if they acted correctly, but then made procedural mistakes in the course of the trial, being poorly advised legally, or if finally the judge acted in a biased manner, being influenced by anticlerical prejudices.
In the event of insurmountable difficulties with the dialogue, a first level of mediation can allow internal tensions to be resolved. Various organizations work in support of religious institutes and/or their members.
They act in particular in favor of religious, but the absence of contradictory procedure with their institutes can create a risk of prejudice in favor of false victims:
The following two act in favor of the religious institutes, in seeking to protect them legally against actions taken against them by the State or by their own members:
There is finally a body that acts in different ways, respecting the right of defense of the two parties, namely the « Welcome Mediation Service for Religious Life and Community » (SAM), created under the authority of the Coordinating Committee of the Episcopal Commission of Consecrated Life and Conferences of Major Superiors within the Conference of the Bishops of France. Its aim is the following:
…Welcome and listen to persons (parents, members of communities old or new, former members) aggrieved by the actions of a Catholic community and/or denouncing its malfunctions (abuse of authority, mismanagement of property, manipulation…) 
The SAM supported a low number of mediations, but plays an essential role in listening to and pacifying people who make contact with [it]. The most important result is without doubt that of having benefited from its experience to inspire recommendations which aim to prevent future conflicts. It is also likely that the discretion (that can be judged excessive) of the SAM limits the number of appeals which are sent to it. […] The SAM is an innovation of the Church of France, which apparently has no equivalent elsewhere. The SAM has shared the fruits of its experience in many interesting and useful ways, in publishing two reports on points of attention to respect: one, in April 2005, on « Psychological and Spiritual Rapport in Communities. Confusion to avoid »; the other, in September 2008, on « Points of Vigilance Regarding the Religious or Community Life.” […] The Church is therefore not devoid of means to ensure the protection of the faithful who engage in the religious life.
Thus, despite its lack of legitimacy, « Canonists without Borders » remains necessary to inform religious who want to know which law applies to them and how to enforce it. When receiving requests from members of a French Congregation, Canonists without Borders used to advise them to apply to SAM. Let us see what happened:
On 11 May 2016, a religious of Niger learned that she was not authorized to make final vows after five years of temporary vows. As she insisted, the superior of the convent threw her outside with her luggage; but not knowing where to go, she sat in front of the convent, until two days later, the faithful were upset and told the bishop, who welcomed her in the premises of the cathedral. At first sight, the decision of non-admission has three irregularities since it was made by the Vice-Provincial and not the General Superior, it had not been preceded by any of the monitions required by canon 697, and it did not contain specific elements of the grievances that would allow the religious to exercise her right of defense. With the help of a judge from the diocesan tribunal, the sister then made hierarchical recourse to the Superior General, who called her several times on the phone announcing a written response, but nothing came. Then, the judge directed her to Canonists without borders,which in turn sent her to the welcoming and mediation service of the Conference of the Bishops of France (SAM), which responded on 8 December 2016 without even having investigated: « The Superior General is responsible for the phases of the religious life, [the sister] must therefore accept this decision. The time limit for appeal is 10 days, which has long since passed. The SAM therefore cannot help.” When questioned on this refusal, the SAM responded informally to Canonists without Borders that to engage in mediation, there must be two, which suggests that the congregation of the sister was contacted by the SAM, and had refused the principle of a mediation. On 21 December 2016, the congregation sent her a letter of dismissal dated November 8, 2016, asking her to leave the religious habit.
Sometimes, instead, the intervention is beneficial:
Having been expelled from his congregation, whose leaders behaved in a totalitarian manner, and no longer have any means of subsistence, the state of health of a religious was deeply affected when he appealed to Canonists without Borders. He was encouraged to maintain his confidence in God, avoiding the two pitfalls of shame and hatred, and to defend his rights by contacting the SAM. The latter then conducted a mediation, which allowed him little by little to obtain a indult of exclaustration under satisfactory conditions.
The second level of juridic recourse is that of classic hierarchical administrative recourse, as per canons 1732ff. From his investigation in the American dioceses, James Provost found that the number of hierarchical recourses by religious is low, since he only counted two recourses in 141 dioceses over 16 years. Here are two hypotheses to explain this surprisingly low result:
Here is a prime example of unsuccessful recourse:
Having received a notification of non-acceptance of her religious profession, an African religious who had spent ten years in a congregation made hierarchical recourse to the Roman Congregation responsible for religious. She received a negative response by e-mail stating that the refusal of renewal of vows is not tantamount to removal, and obliged her to obey. The sister then requested a new review, citing the paragraphs of the Congregation’s own statutes, which had not been respected in the process. For unknown reasons, the Congregation did not address the irregularity, although the religious, who waived contentious-administrative recourse, must start her life over from scratch in the secular world, without a family and without support other than that of Canonists without Borders, which permitted her to buy a embroidery-machine, to allow her to earn a living.
And here is an example of the successful use:
Having received two warnings of expulsion from his Superior General, a religious contacted the « Cell for the sectarian deviations in Catholic communities » of the Bishops’ Conference of France, which identified ten legal irregularities in the conduct of the Superior General. On the advice of the cell, the religious made hierarchical recourse requesting the nullification of the General Chapter of his congregation, which was held illegally, since he himself had not been notified of it. Informed of this hierarchical recourse which annoyed him, the Superior General intervened with the competent dicastery of the Roman Curia, namely the Commission Ecclesia Dei, and the Commission finally responded to the religious who had written several emails to them without response. A compromise solution was found and implemented.
The third level is that of contentious-administrative recourse, whose number is relatively important. Indeed, our database shows that:
In fact, recourses cover two major areas which will structure our chapter. The first concerns justice for consecrated and other physical persons, while the second concerns justice for juridic persons which are the institutes of consecrated life and societies of apostolic life.
This chapter will attempt to clarify the situation regarding contentious-administrative jurisprudence relative to consecrated persons. We will build in particular on the analysis carried out in 1986 by Francesco of Ostilio, on 90 contentious-administrative recourses presented by religious or by their institutes.
The 1978 activity report of the Holy See indicated that, among the three types of administrative acts which are most often the subject of administrative recourse with the Supreme Tribunal, two concerned religious, namely cases of exclaustration and cases of resignation.
More specifically, F. Ostilio classes the recourses according to these main headings:
From the work of Ostilio, Javier Canosa sought the « major judgments » favorable to religious, which marked the first 40 years of administrative case law. He noted:
Without being confrontational, let us start with departures from institutes, before addressing other administrative acts.
The activity report of the Congregation for Religious lists for 2015:
Here is an attempt at explanation:
One of the realities that quickly strikes any new employee of the Dicastery [the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life] is the continued growth of the number of departures from institutes of consecrated life and from religious institutes in particular. Our services address up to 3,000 applications per year for departure from the institute! […] According to statistics, the grounds relied on in support of the applications for departure are predominantly related to a crisis of faith and then to difficulties in fraternal life and finally, to a lesser extent, an emotional deficit. […] Nevertheless, although the departures are numerous, we must keep in mind that a tree that falls makes more noise than a forest that grows. If there are infidelities, let us remember that there is especially a lot of holiness in the religious life.
In law, the departure from their community by consecrated persons (in the broad sense) is governed by canons 686 and 687 for religious institutes, 726 to 727 for secular institutes, and 742 to 745 for societies of apostolic life, as well as by the statutes of their own communities. The situations are diverse, as Yuji Sugawara indicated :
The grounds for departure from institutes are numerous. Some religious leave their institute following the non-renewal of their provisional vows, either voluntarily or after a decision by superiors. Others seek to take a step back and ask to be absent from their institute, which requires:
The three most common reasons in support of a request for a leave of absence or exclaustration are the need to provide assistance to one’s family, illness, and the needs of a particular apostolate.
The permissions and corresponding indults are considered favors, which may be refused. If a law seems to have been violated, one whose request is denied may then make a recourse which is accepted, rejected, not admitted to discussion or resolved by transaction, depending on the case.
Canon 653 §1 provides that:
Can. 653 §1. A novice can freely leave an institute; moreover, the competent authority of the institute can dismiss a novice.
In the event of separation, it is not legally necessary to indicate the causes of departure or of the reference of a novice, unless the particular statutes of the institute require it. Reciprocal charity may, however, require it to be done.
If it is a case not of a novice, but of a religiou
s in temporary vows, who may have given up to nine years of his life to an institute, canon 689 requires a decision by the major superior, a just cause and a hearing by the council, but not necessarily the agreement of the latter, knowing that the statutes of institutes can impose additional conditions.
Can. 689 §1. If there are just causes, the competent major superior, after having heard the council, can exclude a member from making a subsequent profession when the period of temporary profession has been completed.
Subject of the own right to the Institute, canon 689 §2 and §3 specify under what conditions a disability may be a cause of separation. Additionally, charity demands that the novice or professed member be left without means, to return to his family or to survive for some period of time.
Sometimes, a religious does not wish to be absent or depart the institute but it is his superiors who wish to separate from him. One of the solutions that will then be presented to superiors is to impose on a religious exclaustration, temporary or final, under canon 686 §3, for a grave cause such as, for example, the inability to live the common life, prolonged absence from the religious house, or repeated violation of the vows of obedience and poverty.
Without entering in detail, let us remember that the religious concerned is then exempted from the obligations which are inconsistent with his new state, but he continues to depend on his superiors. Some then file recourses which are accepted, rejected, not admitted to discussion, abandoned or settled by transaction, depending on the case. Here is an example of case law:
In the case Prot 18061/86 CA, jurisprudence observes that exclaustration imposed for three years under canon 686 does not require a serious fault, but rather a serious reason.
Relying on jurisprudence, Sister Dominique Moral-Carvajal mentioned several grave causes likely to lead to imposed exclaustration after alternative solutions have been attempted without success: personality disorders and psychic anomalies identified by experts, alcoholism causing a serious scandal, illegitimate and prolonged absence, disorder in community life, discord and repeated complaints. She observed that the Code does not mandate a particular procedure for imposing exclaustration, but in the absence of precision in the statute, it is necessary to respect, with a lesser degree of rigor, the procedure for making religious in simple vows aware of an admonition in advance, their right of defense, the decision of the Council reached by secret ballot, or even a letter of the institute committing to provision of material and moral support, and reference to the possibility of making recourse.
Sugawara also specified that imposed exclaustration has to be the subject of a special written decree, the person concerned must remain outside of the Community until the established time but remains a member of the institute, without the right to vote, and must be helped medically or physically if necessary. The exclaustrated religious is then required to lead a simple life, and to observe his vows and the obligations of his profession, with the exception of those that are incompatible with his new state of life (c. 687). He remains dependent on the local bishop, especially if he is a priest.
To readers who want to study the question more deeply, we recommend the work of Madeleine Ruessmann and Moral Delfina Carvajal as well as Sugawara, stating nevertheless that final exclaustration imposed in a case of serious misconduct is reserved to the Holy See for institutes of pontifical right, and to the diocesan bishop for institutes of diocesan right, « while observing equity and charity. »
Sometimes, superiors want a member of their institute to depart, and they remove him in virtue of canons 696 to 701, for a reason that is « serious, external, imputable and legally proven.” Javier Hervada commented on the evolution of the applicable law:
Now, any legitimate dismissal –that is to say provoked by a sufficient cause and carried out according to established procedure— ipso facto entails the cessation of vows and of other rights and obligations. The procedures differ depending on the reasons for the dismissal, and not on the basis of the legal situation of the religious. These are:
As regards the possible causes for expulsion, the list (only indicative, not exhaustive) provided by canon 696, §1 constitutes an important innovation.
Can. 696 §1. A member can also be dismissed for other causes provided that they are grave, external, imputable, and juridically proven such as: habitual neglect of the obligations of consecrated life; repeated violations of the sacred bonds; stubborn disobedience to the legitimate prescripts of superiors in a grave matter; grave scandal arising from the culpable behavior of the member; stubborn upholding or diffusion of doctrines condemned by the magisterium of the Church; public adherence to ideologies infected by materialism or atheism; the illegitimate absence mentioned in can. 665 §2, lasting six months; other causes of similar gravity which the proper law of the institute may determine.
The legislator did not want this delicate matter to be determined exclusively by proper law, but has put tangible parameters, so as to always protect the rights of religious, the common good of the institute and, ultimately, that of the Church. Often the reason cited by a superior is the refusal to obey that is addressed in canon 601:
Can. 601 The evangelical counsel of obedience, undertaken in a spirit of faith and love in the following of Christ obedient unto death, requires the submission of the will to legitimate superiors, who stand in the place of God, when they command according to the proper constitutions.
However, Georges Mboma thinks that this canon does not correspond to the African reality and he wrote a specific book by which he tries to reconcilie law and the local situation. Several dismissed religious told that they had been expelled for usually improper motives.
Observe that the disobedience is not always a reason for expulsion, because:
A religious is required to obey his superior, but the latter does not have absolute power to order anyone to do anything.
Similarly, a religious is not required to obey an order that is illegal or contrary to the spirit and the charism of the institute. Canon 618 specifies the obligations of the superior:
Can. 618 Superiors are to exercise their power, received from God through the ministry of the Church, in a spirit of service. Therefore, docile to the will of God in fulfilling their function, they are to govern their subjects as sons or daughters of God and, promoting the voluntary obedience of their subjects with reverence for the human person, they are to listen to them willingly and foster their common endeavor for the good of the institute and the Church, but without prejudice to the authority of superiors to decide and prescribe what must be done.
The three previous texts are designed to prevent and avoid the abuses which might result from an insufficient protection of the principle of authority or of the rights of the faithful. Their interpretation is the subject of commentary by canonists, among whom is Christian Begus, based on two cases of jurisprudence, of which we will provide the conclusion:
In reality, the situation is sometimes less clear, as we have seen with the religious of Niger and the Brazilian religious (see above). Except in the case of dismissal ipso iure, for marriage or notorious abandonment of the Catholic faith in law or in fact (e.g. conversion to Protestantism or orthodoxy), the decree of expulsion becomes enforceable within 10 days, possibly to leave time for the religious to make recourse, which then has suspensive effect. In effect, a sentence of 24 February 1973 constitutes jurisprudence on the subject and has inspired canon 700, specifying that the recourse has suspensive effect.
Since the intervention of the Curia is required for forcible dismissal, the question arose as to whether an expelled religious must make hierarchical recourse before or after the decision of the Curia. Following the promulgation of the Code, the Commission for the Interpretation of Legislative Texts responded to this issue by specifying on March 21, 1986 that the dismissal of religious, members of the societies of apostolic life and secular institutes must be notified to the person concerned only after having been confirmed by the Holy See. The latter can then make hierarchical recourse to the Roman congregation, but not immediately to the Supreme Tribunal. In practice, every year some expelled religious make hierarchical and contentious-administrative recourses. Depending on the case, these recourses are deemed inadmissible, not admitted to discussion, abandoned in the course of the procedure, rejected or accepted, which shows that justice plays its role. As an illustration, here is a prime example of an accepted recourse:
In case Prot 31290, the Tribunal estimated that the obligation to give the accused the right to defend himself requires that he be provided with the statements of witnesses and in the present case, this right was not respected, and thus his expulsion was regarded as illegal both procedurally and on the merits.
Here is an example of a recourse that was dismissed:
In case Prot 37163, a religious who was living outside of his province was held to have been injured, because the decree of expulsion issued against him in conformity with canon 697 did not give him the choice between repentance or expulsion, but proposed only the solution of expulsion. The Apostolic Signatura held that repentance had been proposed to him, and it dismissed the recourse.
And here is a second example of a rejection:
In case Prot 18061, Sister Monica complained that the reasons for her forced exclaustration were not communicated to her, and that consequently she was unable to properly employ her right to defense. The Tribunal found otherwise, considering that, even if the motivations for the exclaustration had not been communicated in writing, she knew well enough what they were. Certainly, canon 51 specifies that « A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision, » but the Tribunal estimated that a general explanation was sufficient, inasmuch as the documents previously forwarded provided clarification and could be considered as decrees within the meaning of canon 49.
Expulsions have consequences for the people who leave their institutes, and their situation is sometimes the subject of a new litigation.
One of the disputes which sometimes accompanies the expulsion of a religious concerns the social rights that he acquired while in the service of his congregation.
Canon 702 specifies:
Can. 702 §1. Those who depart from a religious institute legitimately or have been dismissed from it legitimately can request nothing from the institute for any work done in it.§2. Nevertheless, the institute is to observe equity and the charity of the gospel toward a member who is separated from it.
Finding the right balance between the two paragraphs of this canon has been the subject of various interpretations by the Roman Curia and canonists. It follows that material assistance is necessary for a initial period, permitting the person to find a means of supporting himself.
In French law, the 9 December 1905 law on the separation of Church and State has remanded vowed religious into the sphere of private activities, under the control of the courts. These take into account, however, the vow of obedience of some religious, distinguishing their spiritual activity from their labor relations. It results in a secular jurisprudence that is uncertain and therefore complex, reported by Patrick Boinot from nuanced judgments of the Court of Cassation, of which here are some examples:
Regarding a religious who had worked as a nurse at the Little Sisters of the Assumption, the plenary assembly established on 8 January 1993 that Ms.… had exercised her activity only for the benefit of her congregation, a fact which excluded the existence of a labor contract.
Regarding two married members of a new community which does not have the status of a religious congregation, the Social Chamber of the Court of Cassation ruled on 29 October 2008 that « regardless of the spiritual nature of their commitment,” these two people « worked for the association in a relationship of subordination characterizing a labor contract. »
Regarding Ms…, bound by religious vows in the community of the Glorious Cross which she later left, the Social Chamber of the Court of Cassation ruled on 29 October 2008 that « the existence of a relationship of employed labor depends neither on the willingness expressed by the parties, nor on the name that they have given to their agreement, but on conditions of fact in which they engage in the activity of workers; the religious commitment of a person is likely to exclude the existence of a labor contract only for activities that he performs for the benefit of a legally established congregation or worship association.” In this case it recognized the existence of a labor contract with the consequences that follow.
With respect to retirement benefits, Patrick Boinot stated that as of July 1, 2006, the social security fund (CAVIMAC) takes into account the years of Postulancy and Novitiate for the calculation of pensions, based on the case law of the Court of Cassation, which was then translated into the law No. 2011-1026 of social security funding for 2012 and article L. 382-29-1 of the Social Security Code.
The 2001 Pontifical Directory states that there are 1,992 institutes of consecrated life and societies of apostolic life distributed as follows:
|Men’s Institutes||Women’s Institutes||Total|
|Sociéties of Apostolic Life||35||12||47|
Among them, the religious institutes are by far in the majority, and so we will address ourselves mainly to their situation, not without some digressions for the secular institutes and societies of apostolic life. The 2015 activity report of the Congregation states that there were 136 authorizations for erection of religious houses during the year. Besides the recourses by religious and consecrated persons, there are also recourses on the part of the institutes of consecrated life and societies of apostolic life or their superior. There are three types of difficulties:
The law relating to religious houses is defined by the following canons:
This right is amended regularly, as shown for example by the interpretation of the Pontifical Council for Legislative Texts, which ruled on 14 July 2016 that the Major Superiors of clerical institutes of pontifical right do not have competence to erect pious foundations within the meaning of canon 312 §2.
The Pontifical Directory indicates the date of foundation of the institutes of consecrated life and societies of apostolic life, as well as the date of their canonical recognition, making it possible to measure the average duration of recognition. In carrying out this work on the 2011 directory, there appears a distribution that is almost uniform with the deadlines of recognition between a few months, and more than 50 years, highlighting the fact that it is not a right but a grace:
< 1 year 1-5 y. 6-10 y. 11-15 y. 16-20 y. 21-25 y. 26-30 y. 30-35 y. 36-40 y. 41-45 y. 45-50 y. > 50 years
In this regard, we have not found a remedy against non-recognition of a religious or secular institute. It is otherwise for decisions about suppression of monasteries or during division (Prot 39257/06 CA), or unions (Prot 40608/07 CA) of religious institutes. Here, among others, is an example of recourse:
After preliminary agreement by the Congregation for Religious and Secular Institutes, a diocesan bishop suppressed a religious house by a decree on 29 July 1970, particularly because of the advanced age of the religious. After deliberation in their chapter, the religious made a hierarchical recourse, and then a contentious-administrative recourse with the second section, and the Pope himself mandated a Pontifical Commission to examine the case on the merits and not only on the legality. On 24 February 1973, the College of the Tribunal nullified the decision and imposed the restitution of the monastery on the basis of cc. 493 and 498 of the CIC/17, that the Bishop was not empowered to take such a decision, as it was within the competence of Rome.
The issue of property rights is sometimes difficult in the case of the reorganization or suppression of institutes, sometimes resulting in recourse after the Congregation or the Supreme Tribunal recognizes the right (e.g.: Prot 384/68 CA).
Property are also occasions for disputes between the diocesan bishop or a parish, and a religious institute, as it seen in several cases in the 1987 activity report. Here is an example dating from 1972:
A conventual building that belonged to a religious institute had become the property of a parish following the Concordat of 1818 with the Kingdom of Naples. But 150 years later, the institute claimed its rights and won the case with the Congregation of the Second Vatican Council (now the Congregation for the Clergy), but the parish then made contentious-administrative recourse with the Supreme Tribunal. On December 12, 1972, the College quashed the decision of the Dicastery, which included a defect of form.
There are other cases where conflicts of ownership are ended by a transaction between the parties during the time of instruction of a contentious-administrative recourse (ex Prot. 384/68 CA); here, finally, is a dispute between a religious institute and a member of the Catholic faithful, solved thanks to ecclesiastical justice:
In 1950, an individual had loaned a sum of money to a religious congregation in France. The superior repaid the first installments, but his successor did not continue. The individual turned to the diocesan Tribunal, which ruled in his favor. The religious province filed an appeal to the Rota, which confirmed the decision of the diocesan Tribunal, and the Province was given a mandate to calculate the interest on the loan amounts. Challenging this decision, the superior finally addressed the Apostolic Signatura, which did not admit his appeal (Prot No. 923/70 C.G.).
Without going into detail, we could still cite:
Frederico d’Ostilio identified five contentious-administrative recourses against a decision of the Congregation for Religious and Secular Institutes, relating to the internal management of institutes. The decisions of the Tribunal are sometimes in favor of the petitioners:
The general superior of a Secular Institute in Lyon was expelled before the end of her mandate by a decision of the Congregation for Religious and Secular Institutes, leading to early elections. The old and the new superior general went to the Supreme Tribunal, which nullified the decision of the Dicastery by sentence of 26 June 1976. (Prot 6508/75 CA).
And sometimes they are in favor of the Dicastery:
Having been invited by the Congregation for Religious and Secular Institutes to submit his resignation as a result of the serious irregularities in the management of an institute, a superior general refused the invitation and was deposed by the diocesan bishop. She made recourse against the decision and her recourse was admitted to the discussion, but the College finally judged on 14 December 1964 that her removal was consistent with the law.
Other cases of this type have been ended by an agreement between the parties during the instruction of a contentious-administrative recourse brought against a decision of the Congregation for Religious and Secular Institutes (Prot. 5868/74 CA). Such an agreement is currently being sought with an association of religious:
In 2012, the Congregation for the Doctrine of the Faith published a report very critical of the LCWR, which include nearly 80 % of some 50,000 women religious in the United States, accusing it of « radical feminism, » of doctrinal inaccuracies, of having lost the sense of the Church, of holding positions unacceptable in matters of sexuality, and of risking to « distort faith in Jesus and our loving Father . » The religious replied that these were unfounded accusations, potentially destructive to the continuation of their mission. Since that time, negotiations are continuing between the Vatican delagate, Archbishop Peter Sartain and the member-groups of the Association.
In conclusion, we will hold that hierarchical and contentious-administrative recourses constitute a reality which effectively contributes to the respect and/or the restoration of justice in relation to religious. This justice which is internal to the Church is particularly important to our time, in which, at least in Europe, civil society has difficulty accepting the evangelical counsel of obedience.
Thus a few complaints of religious or their family, well founded or not, sometimes lead one to conclude that a religious institute has a sectarian way of working. We will discuss this issue in the next chapter, after having discussed the situation intersecting with sanctions relating to persons with charisms.
 As opposed to religious in contemplative life, who are called nuns.
 These include the instructions below:
 Acquaviva (Claudio S.I.) Industriae pro Superioribus eiusdem Societatis ad curandos animae morbos, Rome, 16 April 1600, quoted by Pope Francis on 22 December 2016 (Zenit www.ignaziana.org/accorgimenti.pdf)
 Zenit, 1 November 2016.
 Donough (Elizabeth Mc), « The protection of rights in Religious institutes », The Jurist, (1986) 164-204.
 Cf. c. 630 Superiors are to recognize the due freedom of their members regarding the sacrament of penance and direction of conscience, without prejudice, however, to the discipline of the institute.
 Cf. c. 654 By religious profession, members assume the observance of the three evangelical counsels by public vow, are consecrated to God through the ministry of the Church, and are incorporated into the institute with the rights and duties defined by law.
 Cf. c. 740 Members must live in a house or in a legitimately established community and must observe common life according to the norm of proper law, which also governs absences from the house or community.
 Paul VI, Evangelica testificato, AAS, LXIII (1971), p. 512-513, n° 28: conscience and obedience.
 Can. 617 — Superiors are to fulfill their function and exercise their power according to the norm of universal and proper law.
 Can. 618 — Superiors are to exercise their power, received from God through the ministry of the Church, in a spirit of service. Therefore, docile to the will of God in fulfilling their function, they are to govern their subjects as sons or daughters of God and, promoting the voluntary obedience of their subjects with reverence for the human person, they are to listen to them willingly and foster their common endeavor for the good of the institute and the Church, but without prejudice to the authority of superiors to decide and prescribe what must be done.
 Empela Ankonelle (Scholastique), L’identité de la vie consacrée face aux actuelles mutations socioculturelles en Afrique, Université du Latran, Corona Lateranensis 47, Rome 2011, p. 267 et 272 / 406 p.
 Rosinski (Michael) “The Due Process to be followed in the Administration of Discipline in Religious Institutes, according to the Code of Canon Law.” Thesis defended at Louvain on 31 May 2016. Analysis in Studia canonica, 51/1, 2017, p. 287-288.
 Alday (Josu Mirena) « Il senso di appartenensa al proprio istituto », in Vitcons 37 (2002) 166-179.
 Politi (Marco), Francis Among Wolves, French version, François parmi les loups, ed Philippe Rey, Paris 2015, p. 141-142/284.
 Harassment can be defined as repeated words and behaviors with the aim or effect of a deterioration of the living conditions of the victim. In French law, moral harassment at work is a reprehensible offense in the private sector as well as in the public sector, as the law organizes the protection of employees, public officials and trainees.
 Politi (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 122/284.
 Politi (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 117/284.
 Congregation for Institutes of Consecrated Life and Societies of Apostolic Life: Instruction of 11 May 2008, Faciem Tuam, Dominates, Requiram (the service of authority and obedience)
 Some canonists interviewed feel that the prohibition of external contacts without permission is illegal. Nevertheless Canonists without Borders has recommended that religious respect it until a letter of expulsion has been formally received, in which case the right to defend oneself seems to prevail over the duty of obedience.
 Information given to Canonists without borders in November 2017.
 Here is a document translated from the site of Avref on 30 June 2017:
You are the victim of a Community, of a movement, or a person who has taken authority over you:
In that case, react. Nothing is lost.
The AVREF welcomes you and helps you: identify yourself! Confidential support provided by families and former members of religious communities.
 Note published by the Diocese of Evry: http://evry.catholique.fr/Service-Accueil-Mediation-pour-la and consulted on 3 March 2015;
Today it consists of 9 members (2 laity, father and mother of the family, a secular priest, 2 male religious, 4 women religious) appointed by the Permanent Council of the episcopate by a mandate of three years. They are bound by the obligation of professional secrecy. […] The people believed to be, for themselves or for a relative, in a situation falling within the SAM can address a request for intervention to the […] Deputy Secretary General of the EFC […which…] will entrust the case to one, and often two, members of the SAM. It falls to the members of the SAM to which the case has been entrusted:
From the outset, the Bishops have held that are have heard the people who are concerned about what they perceive, from the inside or the outside, as deviant behavior in a particular community. They always ask to serve the dynamism of the Gospel, if necessary to report and correct what constitutes an obstacle.
 Javary (Christelle), « La médiation dans l’Église catholique de France : l’exemple du SAM (Service Accueil Médiation pour la vie religieuse et communautaire), mémoire d’IFOMENE 2008-2009.
 Cf. presentation in chapter 12.
 According to ASS (2915), p. 745, 2073 indults of departure were granted in 2015.
 Information given to Canonists without borders in 2017.
 The Pontifical Commission Ecclesia Dei was instituted by John Paul II by a 2 July 1988 motu proprio, « The mission to collaborate with the Bishops, the dicasteries of the Roman Curia and the interested circles, in order to facilitate the full ecclesial communion of priests, seminarians, religious communities or of individual religious having had up to now connections with the Fraternity founded by Archbishop Lefebvre and who wish to remain united to the Successor of Peter in the Catholic Church ».
 Religious priests may be counted either among the clerics either among the religious.
 Ostilio (Francesco D’), Segnatura Apostolica in Dizionario degli Istituti di perfezione, volume VIII, Saba-Spirituali, sous la direction de Pelliccia (Guerrino) et Rocca (Giancarlo), Rome, Edizioni Paoline, p. 1236-249.
 ASS (1978), p. 625
 Ostilio (Francesco D’), Segnatura Apostolica in Dizionario degli Istituti di perfezione, volume VIII, Saba-Spirituali, undr the direction of Pelliccia (Guerrino) et Rocca (Giancarlo), Rome, Edizioni Paoline, p. 1236-249.
 Canosa (Javier), « Giustizia amministrativa eclésiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582.
 Aegrotans non dimittimur sed curatur […] id exigit iustitia si soror N plures annos in commodum Instituti lavoravit: id exigit maxime caritas.
 Javier Canosa indicates the reference Prot 10997/76 CA, while JP Montini indicates the reference Prot 10977/79 CA for sentences of 27 October 1984 and from 1 July 1985 coram Ratzinger. To ensure a good consistency with the cases recorded in the same period, we believe that the most likely reference is Prot 10977/79 CA.
 ASS (2015), p. 745.
 Carballo (Mgr. José Rodriguez, ofm), « Les vœux religieux aujourd’hui » in Revue de Droit canonique, Strasbourg 2015, tome 65/1, p. 237.
 Sugawara (Prof. Yuji), « Separazione imposta ai membri dell’istituto religioso », Periodica 106 (2017), p. 177-189.
 Cf. Hervada (Javier), Code de droit canonique bilingue et annoté, op. cit. p.886.
In the case Prot. 14997/83 CA, the religious had not renewed his vows, and was conidering himself as outside the institute; but his Congregation held otherwise, even though it resulted in an appeal by the ex-religious.
 See also c. 740 for the members of a society of apostolic life.
 Or c. 727-728 for the member of a society of apostolic life.
 Moral Carvajal (Sr. Delfina, O.P.) “Exclaustrazione imposta di un religioso. Applicazione pratica,” Periodica 106 (2017) 190-216.
 Prot 3671/72 CA ; Prot 7607/76 CA.
 Prot 10896/79 CA as indicated by F. d’Ostilio (Dizionario, op. cit., p. 1245) Or, more likely, Prot 10896/75 CA.
 Prot 7084/75 CA
 Prot 227/69 CA ; Prot 3356/72 CA ; Prot 10218/78 CA ; 16616/84 CA
 In case Prot 4064/73 CA, the religious was readmitted into his monastery. In case Prot 6277/75 CA, the Roman Congregation admitted a provisional exclaustration of three years and the religious withdrew his appeal.
 Ministerium Justitiae, op. cit. p. 255-274.
 Moral-Carvajal (Prof. Delfina Moral), « Exclaustrazione imposta di un religioso. Applicazione pratica ». Periodica 106 (2017), p. 190-216.
 Sugawara (Prof. Yuji), op. cit.
 Sister Dominique specified that unfortunately, exclaustrated religious are often left on their own by their congregations.
 Ruessmann (Madeleine), Exclaustrations, its nature and use according to the current law, Roma 1995, Editrice Pontifica Universita Gregoriana, 550 p.
 For example, the 1983 code had abolished the differences of law between religious and religious-scholars that prevailed between 1917 and 1983.
 Cf. Hervada (Javier), Code de droit canonique bilingue et annoté, op. cit. p. 621-622.
 Mboma (Georges usus) Le droit canon face aux défis des réalités africaines, Cas du renvoi d’un religieux. L’Harmattan, 2013, 96 p.
 Huels (John M.), « Unlawful Command by a Major Superior”, Roman Replies (1997), p. 53.
 cf. Comm 9  53-61). Cf. VC 43.
 Prot. 30199/99 CA and Prot. 33358/02 CA
 Begus (Christian), Adnotationes in decreta, Apollinaris 2011 (44/2), p. 501, translated from Italian.
 The law considers a civil marriage to be a marriage, but does not recognize other types of union, such as a PACS in France or a registered partnership in Belgium.
 Prot 150/70 CA, cited by Lobina, ME (1973) 1-4, p. 313
 On 2 January 1984, it was replaced with the Commission for the Interpretation of the Decrees of the Second Vatican Council.
AAS 78 (1986), p. 1323.
 Prot 8031/76 CA ; 9690/77 CA ; 10218/78 CA ; 14997/83 CA ; 15721/83 CA…
 Prot 150/70 CA ; 2089/71 CA ; 2848/72 CA ; 8474/76 CA ; 9242/77 CA ; 12618/80 CA ; 13557/81 CA…
 Prot. 9993/78 CA.
 Prot 9498/77 CA ; 8984/77 CA
 Prot 3671/72 CA ; 10460/78 CA ; 11390/79 CA ; 11391/79 CA ; 15721/83 CA ; ; coram Sabattani, 23/1/88, registration number not indicated, cf. ASS (1988), p. 1405.
 Ministerium Justitiae, op. cit. p. 314.
 The Jurist, 73 (2013):1, p. 222-227
 Ministerium Justitiae, op. cit. p. 255-274.
 “Exclaustration and Social Security. Pension Plan, Roman Replies (2006), p. 56-57.
 Congregation for Religious and Secular Institutes, Declaration on the aid to be provided to those who leave their institutes, 25 January 1974, n. 5, Enchiridion Vaticanum 5/1-12.
 De Paolis (V.), La Vita consacrata nella chiesa, Venezia 2010, 590 p.
 Cf. Coulombel, (P.) « Le droit privé français devant le fait religieux depuis la séparation des Églises et de l’Etat », Rev. trim. dr. civil 1956, p. 1, n° 3 and 15.
 Boinot (Patrick), « Vœux religieux et relations de travail », » in Revue de Droit canonique, Strasbourg 2015, tome 65/1, p. 143-163.
 The recourse was accepted in case Prot 10997/79 CA, against a decision of withdrawal of the office of teacher in a Pontifical Faculty for presumed scientific immaturity. By decision of 27 October 1984, five years after the filing of the appeal, the religious was reinstated in his position as a teacher.
 The recourse Prot 1063/69 CA was denied, while recourse Prot. 2207/71 CA was abandoned by the petitioner.
 ASS (2015), p. 745.
 The Pontifical Council for Legislative Texts, Prot 15389/2016 in Archiv für Kirchenrecht Latolisches No. 184/1 (2015), p. 155-156.
 Prot 3672/72 CA ; 27406/96 CA ; 33121/02 CA ; 37162/05 CA
 ASS (1987), p. 1292 and 1293.
 Prot 324/69 CA cited by D’Ostilio, op. cit. p. 1239.
 Roman Replies (2012) 21
 Congregation for the Doctrine of the Faith, Doctrinal Assesment of the Leadership Conference of Women Religious, 18/04/2012.
 Politi (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 121/284.