(PDF) Administrative Justice In The Catholic Church

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: to promote canon law and justice in the Church; 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; to present the progress made by the justice of the Catholic Church in fifty years of practice; to illustrate its practical implementation through a hundred examples of conflicts, friendly resolutions and case law; to make a scientific contribution for the world of the canonists, from an unpublished database on administrative jurisprudence; to contribute to social justice by promoting the administrative justice of the Church, by helping people in difficulty and by proposing ways of improvement.

ADMINISTRATIVE JUSTICE IN THE CATHOLIC CHURCH 1 2 1st Publisher: energeTIC, www.energeTIC.fr 1st Diffusion: Canonists without Borders www.canonistes.org & Amazon N° ISBN: 978-2-9561888-1-0 9782956188810 Legal deposit: Paris, April 2018 NB: We are looking for an editing partner for the English speaking countries. Please contact yves.alain@canonistes.org 3 Yves Alain Ducass Administrative Justice in the Catholic Church seen from France and from Africa (corrected and augmented edition) + Imprimatur October 11, 2017 By S.E. Msgr. Laurent Dabiré Bishop of Dori (Burkina Faso) Doctor of Canon Law President of the Commission on Tribunals, Formation and Canonical Questions of the Episcopal Conference of Burkina-Niger 4 Other books written by (Yves) Alain Ducass1 • • • • • • • • • • • • • • • • 1 Gagner sa vie sur Internet en Afrique comme en France, L’Harmattan, 2006, 136 p. L’aménagement numérique du territoire, La Documentation française, 2007, text written with Gilles Coester, 106 p. « Learning from peers : best practices in eBusiness for European SMEs, published in the 23 languages of the European Union, Brussels, 2009, co-authored by Michel Declunder, 64 p. Le droit canonique à l’heure du numérique, Editions universitaires européennes, 2016, 167 p. La justice administrative de l’Eglise catholique, First edition, L'Harmattan, Paris January 2017, 344 p. La giustizia amministrativa nella chiesa cattolica, éditions energeTIC, distributed by Canonists without Borders, Paris October 2017. La justice administrative de l’Eglise catholique, 2ème edition with imprimatur, L’Harmattan, Paris November 2017, 372 p. Other books in the “Canon Law” collection of l'Harmattan: Gabriel Maïzuka : Procédure pénale extrajudiciaire canonique et droits de la défense (2017) Iwaka Kitambala : L'office du chancelier dans le code de droit canonique de 1983 (2017) Yves Alain Ducass "La justice administrative dans l’Eglise catholique" (2017) Paul Venance Ntambwe Kasongo "Normes canoniques sur les moyens d'éviter les litiges. Contexte culturel du Congo-Kinshasa (2016) Marc Aoun Anne Bamberg Alphonse Ky-Zerbo : Vie et droit des associations dans l'Eglise : Entre liberté des fidèles et vigilance de l'autorité (2016) Sylvain Kikwanga : Charité comme fondement du droit canonique (2016) Jacques-Yves Pertin Justice et gouvernement dans l'église d'après les lettres de saint Grégoire le Grand (2015) Paul Zikpi Kokouvi: L'autorité ecclésiastique catholique et la justice sociale (2014) Hidulphe BILALI BONAZEBI : Défense des droits subjectifs des fidèles (2015) Member of Association des Ecrivains Catholiques Francophones. 5 Preface Since the creation in 1967 of the second section of the Supreme Tribunal of the Apostolic Signatura, many books have discussed the administrative law of the Church, "describing in detail the procedures and the applicable jurisprudence," as the author writes, adding—and one can only agree with his judgment, especially after having read the many notes and bibliographic references at the bottom of the pages—"But there does not exist, to our knowledge, any recent French book on the subject, which focuses on the administrative case law of the Church and which provides the basics of administrative canon law for the Catholic faithful." This is the book written by Alain Ducass. Of course, the book that he presents to us implies a certain knowledge of the law of the Church and, I would even say, the secular law, but at the end we have not an abstract discussion, but a guide-book, based on a unique database, rigorously and clearly designed, explaining many real-life examples and subjecting them to a criticism that is always constructive. It would be inappropriate simply to reiterate in a poor way what the author has written in a masterly way. Read for yourselves the "Historical Perspective", and you will discover the author’s method, with the reported facts and the remarkable bibliography accompanying this chapter. Read with attention Chapter 3 on the sources of jurisprudence, and discover a database which will give you an idea of the work and the mastery of the author, and which will allow you to understand the subject in greater detail. Let yourselves be guided by the book. It is essential, moreover, that you carefully read Chapter 11 on "Prospects for Development.” Too many canonical discussions, symposia and conventions, as interesting as they might be, only lead to the publication of a volume, intended most often for use within the confines of a library; but the work of Mr. Ducass opens many perspectives which are practical, reasoned, and desirable. This book is a guide for action. Certainly these "Prospects for Development" will provoke some criticism and reticence. It is very difficult to accept changes in our habits of thinking and acting. A great connoisseur of men and their laws wrote in this regard: We who reign, how many useless things We say, without knowing the evil that we do! When the truth comes, we are hostile, We have reasons against reason. 6 In the field of administrative justice of the Church, we can and we must rule against Victor Hugo2. Rev. Jacques Gressier Doctor of Canon Law3 Former Judicial Vicar of Arras and Amiens Author of the Recueil Canonique d’Arras July 25, 2017 Photo of Abbot Jacques Gressier, still active at the age of 90 years, together with his coworker, Madame Dieu. 2 3 HUGO (Victor) The Art of Being a Grandfather IV, 4 http://droit.regiminal.free.fr/ 7 2016 is the 500th anniversary of the first publication of Saint Thomas More’s Utopia, arguing for social justice. Let us read a few sentences of this catholic English lawyer: Two evils, greed and faction are the destruction of all justice. Laws could be passed to keep the leader of a government from getting too much power. Anyone who campaigns for public office becomes disqualified for holding any office at all. The things we pray for, good Lord, give us grace to labor for. ~ Thomas More 8 Saint Yves, you have lived among us, You were an advocate for the poor, The defender of widows and orphans, The providence of all the needy. Listen to our prayer today. Make us love justice as you have loved it. Help us to defend our rights, Without prejudice to others, Seeking reconciliation and peace above all else. Inspire the defenders who plead the case of the oppressed To ensure that justice is done in love. 9 Introduction Faithful to the example and teaching of Christ, the Church, the light of the nations, fights against everything that hinders the full development of man, and in particular the culture of atheism which is sometimes an obstacle to the "free exercise of religion in society4.” Over the centuries the Church has been committed to defending the rights of God, and to combating all forms of heresies that can deprive the faithful of grace and the salvation of their souls. However, Even if some, by the will of Christ, are established as doctors, stewards of the mysteries and pastors for the good of others, nevertheless, as to the dignity and activity common to all the faithful in the building up of the Body of Christ, a genuine equality reigns among all5. All the same, The Church clasps sinners to its breast, it is therefore at once holy and always called to purify itself, constantly pursuing the path of penance and renewal 6. Thus, despite the holiness of the Church, there still exist in our days some situations in which the Pastors of the Church behave like "mercenaries" (John 10, 12), as well as like legalists who "impose burdens hard to carry" (Luke 11, 46) on the shoulders of some of the faithful. Here is an example from Africa: Unfortunately, very often some [diocesan] Curias of the south are dependent on the preconciliar structure of the Church, and are immersed in a cult of Authority proper to cultures of the third world, and are influenced by the way in which the civil authorities rule the nations of the Third World. They have forwarded the idea that the Curia is a center of power and decision-making, where the bishop directs his diocese with authoritarianism. It is not surprising to observe, in some cases, the absence of structures of pastoral consultation, and the faithful are unaware that it is their right to contact their bishop as the father of a family. It is even more surprising that this praxis is also found in the older churches, of which it is said that some have just freed themselves from the cult of power7. This type of situation damaged the Church, as Jean-Paul Betegne indicated: 4 Dignitatis humanae, No 1. Lumen Gentium, No 32. 6 Lumen Gentium, No 8. 7 KITAMBALA (Hilaire Iwaka) L’office de chancelier dans le Code de droit canonique de 1983, l’Harmattan, Paris 2017, p. 38-39 / 245. 5 11 It is not uncommon to find in the Church abuses of law and authority on the part of the hierarchy, which has the duty to promote the law of the Church. […] One cannot measure enough the extent of the damage caused within the community of the faithful and in the eyes of the world by such attitudes. It is indeed the image of the Church which is tarnished, there are many faithful who disdain the social teachings of the Church, there are men and women who relativize the relevance of the evangelical message, the frequenting of the sacraments which are neglected, etc.8 Aware of these difficulties, the Second Vatican Council affirmed the rights and obligations of the faithful, and to enforce them, on 15 August 1967 Blessed Paul VI created the second section of the Supreme Tribunal of the Apostolic Signatura, responsible for deciding: The disputes arising from the exercise of ecclesiastical administrative power, as well as those that are submitted in appeal against a decision of a competent Dicastery, when he is accused of having violated the law9. "How many of the faithful have had the feeling of not being understood, that they were sometimes rejected?" wonders Cardinal Sarah10. A survey conducted in Dakar in 2017 shows that more than half of the faithful surveyed11 remembered a situation of controversy due to ecclesiastical power, while none of them was aware of the existence of the Administrative Tribunal of the Church created on August 15th 1967 or of the procedures of ex gratia, hierarchical and contentious-administrative recourse. During those fifty years, canonists published treatises on the administrative law of the Church and scholarly articles in Italian, English, Spanish, German and Latin, describing in detail the procedures and the applicable jurisprudence. However, to our knowledge there is no recent book written on this subject with many practical examples about the administrative case law of the 8 BETENGNE (Jean-Paul) Catholic University of Central Africa, Catholic Institute of Yaoundé, “Canonical Culture and Juridic Cultures in Africa,” 6 October 2017 conference at the International Convention of the Consociatio. 9 Regimini Ecclesiae Universae, article 106. 10 SARAH (Cardinal Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 223/420. 11 The sample was made up of 25 participants of mature age, participating in the international symposium organized by the Center Saint Augustin in Dakar on the occasion of its 30th anniversary. 12 Church12, which would provide the basics of administrative canon law to the Catholic faithful. This book aims to fill these two gaps, from the thought of a French member of the Catholic faithful and a licensee in canon law13 regularly working in Africa, with the reverence due to pastors14, and taking account of the common good and the dignity of persons. Drawing up a balance-sheet of fifty years of administrative justice is, however, an impossible task, for an inexperienced canonist, who is not plunged in the seraglio of the Supreme Tribunal of the Apostolic Signatura. Without claiming to achieve this, we propose these few pages of witness and of research that are based on five foundations: 1) An academic framework, before and after the obtaining of a License of Canon Law; 2) Regular contacts with the Catholic faithful on the network Canonists without Borders, which allow the author to collect many published or unpublished testimonies and interact with their authors, as does our colleague Cathy Caridi15 in the English-speaking world; 3) A database of 994 contentious-administrative cases and 1123 decisions of the Supreme Tribunal, compiled from 2005 canonical publications16, and structured with the techniques of the engineer17; 4) A professional experience rich and varied in France and Africa, allowing us to take a step back regarding an institution; 5) The comments received and research carried out after the first French edition of the book. 12 A notable exception is the doctoral thesis of Msgr. Patrick VALDRINI, pro-Rector and Professor of Canon Law at the Pontifical Lateran University in Rome. His dissertation formed the basis of two books published in Strasbourg: Conflits et recours dans l’Église, Cerdic 1978; Injustices et protection des droits dans l’Église, Cerdic, 1984. 13 This diploma, awarded by the Archbishop of Strasbourg, corresponds to the second Master’s of Canon Law of the University of Strasbourg and the diploma of Propaedeutics of Theology of l’Institut catholique de Paris. 14 In the course of his work in administrative bodies, the (inter)diocesan Church courts, the author has been able to appreciate the professionalism, seriousness and the generosity of the clergy in charge of ecclesiastical justice for the recognition of the invalidity of marriage, and the dedication of the volunteers who help them. It has to be strongly recommended to other Catholic faithful to undertake studies on the canon law of marriage for work in the diocesan chancery or in their parish, to come to the aid of people in suffering, who seek to discern if their marriage is valid and indissoluble, or null, with a view to starting another stage in life. 15 CARIDI (Cathy), Canon made easy, http://canonlawmadeeasy.com/ 16 Status of the database on 1 January 2017. 17 The database on which the book relies is presented in Chapter Three. 13 Written in French within five years of half-time work, and translated into Italian and English18, the English edition of the book and its online database are intended for four categories of persons: • The Catholic faithful, secular, religious or priests, experiencing administrative problems in the Church, and wishing to avoid the double pitfall of both sanctioning by their silence the practices that they believe to be wrong, and also putting the Church in difficulty, by addressing the civil courts or the means of social communication, without trusting in ecclesiastical justice; • Lawyers and curious persons who want to learn more about canon law, or even undertake studies in this area19; • Canonists who will be able to access a lot of unpublished information on canonical administrative case law; • Church leaders, who will find in these pages food for thought for their future decisions. The first part of the book presents the context of ecclesiastical justice, with a reminder of its role in the history of the Church20, the analysis of its theological foundation, a simplified presentation of the procedure, and the description of our database, all illustrated by numerous unpublished diagrams which are explained in the book, such as those of recourse procedures referenced below. 18 The English translation has been made with the help of an American canonist and of a teacher and translator, Célie-Anne Ducass 19 L’Institut catholique de Paris (ICP) puts online free training dedicated to canon law, entitled "La loi des hommes et la loi de Dieu," cf. www.droitcanonique.ICP.fr. Cf. www.droitcanonique.icp.fr 20 During a pilgrimage on foot toward Compostela, the author was consulted by a German pilgrim, who said he had distanced himself from the Catholic Church, because of its conduct during the 17th century in Germany with the episode of the witch hunt 14 The second part presents the administrative justice of the Church in its daily reality, with a quick reminder of rights, the difficulties encountered and solutions since 1967, because, according to Sergio Aumenta, The introduction of forms of verification of the administrative action (and in particular the institution of judicial review by the Supreme Tribunal) has constituted a substantial improvement for the safeguarding of subjective legal rights21. Five chapters present the difficulties and recourse concerning the lay faithful (chap. 4), clergy (chap. 5), consecrated persons (chap. 6), or the charisms (chap. 7) and the Dicasteries (chap. 8), all illustrated by many cases of jurisprudence, particularly in the following areas: Laity Clergy Consecrated Persons Reorganization of par- Transfer of clergy ishes; reduction of churches to profane use. Non-recognition or Removal of clergy suppression of associations Refusal of admission; exclaustration; Dismissal Suppression of religious houses 21 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 173. 15 Withdrawal of ecclesi- Los of the clerical state Payment of salaries astical mission and administrative and pensions sanctions Dealing with charisms Dealing with Dicaster- Property rights (private revelations) ies In the light of fifty years of practice, the third part of the book allows the reader to revisit recourse procedures, and to propose a few paths of development on the occasion of the jubilee. The book emphasizes systematically the primary sources, which documents are approved by the Holy Father and decisions of the second section of the Supreme Tribunal. Knowing that these sources are not always accessible to the public, especially because of their personal nature, a wide appeal was made to the work of canonists close to the Apostolic Signatura. The absence of available official sources requires the author to propose statistical estimates; but these remain uncertain as long as they are not backed with hard data from the second section of the Supreme Tribunal, to which the present work has been submitted. In addition to the unavailability of sources, the very vast field of administrative law of the Church and the time limits of the 50th Jubilee, the parameters of this book are mainly those which its author determined should be set. He is a member of the Catholic faithful in France, aged 60 years, married, a father and grandfather. His profession of engineer in the service of the French State, and then as consultant to African Governments, has conferred on him a practical experience of administrative law. This has been supplemented by a solid training in canon law22, by three years of research in the library and by a field experiment with Canonists without Borders, including the preparation and follow up of numerous hierarchical and contentious-administrative recourses. His professional success and the support of his company energeTIC provide moral and financial independence, conditions essential to freedom of speech, used with the moderation imposed by the fear of God, love of the Church and scientific honesty, which free a person from the three corresponding slaveries that are egocentrism, closed-minded thought and the lie23. 22 Three years of studies at the Institute of canon law of Strasbourg, two years of theology at the Catholic Institute of Paris, followed by experiences of canon lawyer without payment: as a notary, advocate, and defender of the bond in the diocesan offices of Paris, Versailles, Cotonou and Dakar as a mediator within Catholic parishes in France, as a lawyer advisor of priests, religious and laymen in France and Africa or mediator within French parishes. 23 I, the LORD, am your God, who brought you out of the land of Egypt, that place of slavery. Deut. 5, 6.. 16 First Part: Lighting 17 The first part of this book provides four theological clarifications: theological, historical, organizational and methodological, in three separate chapters. Chapter 1: Historical Perspective aims to share the work of historians of the law in ecclesiastical administrative justice, and to illustrate it by concrete examples throughout the history of the Church. Chapter 2: Principles, Organization and Procedures aims to clarify the principles which govern ecclesiastical justice, and the manner in which it seeks to reconcile the common good of the Church with protection of the rights of the faithful. This chapter is intended to clarify the current organization of administrative justice of the Roman Catholic Church, and the procedures of recourse against administrative decisions of the Church that are perceived as unfair. Chapter 3: The Sources of Jurisprudence has for its object the presentation of the database of contentious-administrative jurisprudence, created from available sources. Mary, Mirror of Justice, Church of St. John Bosco, Paris XX 19 Chapter 1: Historical Perspective 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 trust24. " 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 world25. 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 Evolution26 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 24 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://catholiquetarn.cef.fr/Église-et-memoire-Conference; 25 VIGANO (Mgr Dario Edoardo), statements reported by the Italian Catholic News Agency SIR on 19 July 2017. 26 The first part of this chapter is mainly composed of contributions by historians of the current law, who wish to remain anonymous. 20 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 Church27. 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) 28. 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 27 FRANCIS (Pope), “Fraternal Correction is Exercised with Love and Humility,” Homily at Santa Martha on 12 September 2014. 28 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. 21 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 22 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 23 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 reality29. 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! 2. 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." 29 For the 1917 Code and the result of the historical developments, see the article by P. VALDRINI, in Pouvoirs, 1981. 24 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 Me30 . At that time, there were already controversies and also divisions31 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 apostle32. Ecclesiastical justice resolved tensions within the Church, as was illustrated by Eusebius33, Kevin Matthews34 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 him35. 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 mission36. 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 30 MARK, 9, 38-39. KASPER (Card. Walter), L’Église catholique. Son être, sa réalisation, sa mission, Paris 2014, Cerf, p. 230. 32 Cf. Actes 6, 1-3 ; 1. Tim. 5, 16 ; Jacques 1, 27. 33 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. 34 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.. 35 HEFELE (Charles Joseph) A history of the Christian Councils (Trans W.T. Clark), 2 nd ed. revised, Edinburgh, T. & T. Clark, 1894-1896, vol. 3, p. 395, Translated from English then from French. 36 GAUDEMET (Jean), Église et cité, histoire du droit canonique, Paris, Cerf, Montchrestien, 1994, p. 112. 31 25 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 suffers37. 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 sword38. 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 city39. 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 present40 Some clerics tried to temper the severity of secular power and popular revenge. • This verdict, which was severe and seems to be incredible41, provoked in any case mixed reactions in church circles42. • 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 judged43. • 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 populace44. 37 AUGUSTIN (SAINT) Sermon à Caillau, 11, 5 ; M. A. 250-251 in Saint Augustin, Le visage de l’Église, p. 311-312. 38 VAUCHEZ (André), Les Hérétiques au Moyen Âge. Suppôts de Satan ou chrétiens dissidents ? Paris, CNRS éditions, 2014, p. 35. 39 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. 40 VAUCHEZ (André), op. cit. p. 35. 41 That of King Robert, concerning the heretics of Orleans. 42 VAUCHEZ (André), op. cit. p. 36. 43 Idem, p. 39. 44 Idem, p. 40. 26 Rome also played a growing role as judicial arbiter in matters of ecclesiastical discipline45: After the victory of the Gregorian reform and the end of the schism of 113046, 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 arbitrator47. 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 1215-123048. Formally, the medieval Inquisition49 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 heretics50. 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 supplication51. 45 In particular, cases of simony (trafficking in spiritual property), Nicolaism ("incontinence" of the clergy) or of investiture of clerics by the laity. 46 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. 47 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. 48 Idem, p. 61, note 42. 49 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. 50 Corpus iuris canonici X, 5, 7, 14. 51 DEDIEU (Jean-Pierre), L’inquisition, Paris, Cerf, 1987, p. 8/126. 27 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 schism52. 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 200353. 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 54. 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 review55. Indeed, the positive aspect of the Inquisition was not appreciated enough, because all in all, it is better to have an imperfect justice56 than a military expedition57 characterized by the saying, "Kill them all, God will recognize His 52 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. 53 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. 54 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. 55 RATZINGER (Cardinal Joseph) Declaration on 03 March 2005, on the German TV channel ARD, about his title of "Modern Grand Inquisitor". 56 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." 57 The Massacre at Beziers caused between 5,000 and 10,000 deaths. 28 own,” formulated in the course of the Albigensian Crusade58. 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 authoritarianism59. 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 of60. 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. 58 BERLIOZ (Jacques), Tuez-les tous, Dieu reconnaîtra les siens : la croisade contre les Albigeois vue par Césaire de Heisterbach, Toulouse, Loubatières, 1994, 135 p. 59 VAUCHEZ (André), Les Hérétiques au Moyen Âge. Suppôts de Satan ou chrétiens dissidents? Paris, CNRS éditions, 2014, 309 p. 60 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. 29 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 cases61 … /… 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 Sapone62. 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.63 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, 61 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. 62 Idem, note 33. Cf. Archivio della Congregazione della Dottrina della Fede. (ACDF) 63 KASPER (Card. Walter), L’Église catholique. Son être, sa réalisation, sa mission, Paris 2014, Cerf, p. 245. 30 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 courts64. 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 bailiwick65. He renewed the “Quarantine of the king66”, ordered the presumption of innocence, prohibited the ordeal67 and established a civil form of supplicatio68, 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 son69. Saint Yves is the patron saint of lawyers and of all legal professionals70. From his process of canonization71, conducted in 1330 at Tréguier in Brittany and presented to Pope John XXII on June 4, 133172, it is clear that Yves Hélory of 64 FOYER (Jean), Histoire de la justice, PUF, 1996 Collective, Encyclopédie Larousse, LOUIS IX, consulted on 7 January 2016. 66 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. 67 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. 68 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. 69 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. 70 Canonists chose as their patron Saint Raymond of Pennafort, who in 1234 compiled the Five Books of Decretals, by order of GREGORY IX. 71 In Breton, Zant Erwan. 72 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. 65 31 Kermartin (1253-1303) 73 was an honest man of good life74, 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 people75. 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 justice76. 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 court77. 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 so78. 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 73 Born in Minihy in Tréguier in 1253, during the reign of Saint Louis; died two kilometers from Tréguier, 19 May 1303. 74 Fuit homo bone vita, fuit homo honeste. 75 DE KERC’HOZ (Jean), Clerk and jurist, parishioner of Pleubian, diocese of Tréguier, 90 years old. Witness No. 1, p. 15-16. 76 JAQUET, Son of Rivallon, parish of St. Peter of Louannec, aged 50 years, witness No. 43, p. 63. 77 DE TRÉGROIN (Darien), Rector of the Diocese of Tréguier, aged over 50 years, witness 47, p. 68. 78 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. 32 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 public79. He defended the cases of the poor, widows and other unfortunate persons as much as he was able80. 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.81 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.82 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 79 THOMAS DE PLOULEC’H (Alain), diocese of Tréguier, 70 years old. Witness No 31, p. 49, 50. CROYFROOC (Jean), Esquire, parish of Ploubezre, diocese of Tréguier, witness No. 34, p. 53. 81 TOULEFFLAM (Hamon), of the parish of Plestin in the diocese of Tréguier, Hermit of good reputation, witness No. 20, p. 40. 82 MENGUY (Yves), of the parish of Louanec, diocese of Tréguier, witness No. 35, p. 63. 80 DE 33 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 Parties83 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 persons84. 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 196685, 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 83 PORTIER (Raoul), cleric of Lanmeur, diocese of Dol, witness No 12, p. 30 and No 13, p. 31. 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). 85 The last time a book was put on the Index was in 1961, during the Pontificate of St. John XXIII. 84 34 been condemned fifteen years earlier86. 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 prepared87. 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 prison88. 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: 86 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. 87 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. 88 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. 35 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 Malleus89 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 V90 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 Church91, 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 consideration92. 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 MICHELET (Jules), Histoire de France - tome 7 Renaissance Code of Criminal Justice promulgated by Charles V in 1532 91 BENNASAR (B), L’inquisition espagnole XVème-XIXème siècles, Paris, 1979, p. 233-234 : The Spain of the Inquisition escaped the great witch hunt. 92 VENARD (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. 89 90 36 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-century93. 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 animals94, with them being sentenced to death for having killed people or damaged crops95, but also for the crime of witchcraft96! 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. 93 VENARD (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. 94 CHAUVET (David), La personnalité juridique des animaux jugés au Moyen Âge XIIIe-XVIe siècles, L'Harmattan, 2012. 95 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. 96 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. 37 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 master97. 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 illtreatment of slaves, and raised the question of the injustice of the institution98. 2.7. Justice during the French Religious After the reformation99 and the Council of Trent100, 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 Dragonnades101 and the War of the Cevennes or War of the Camisards102, 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.” 103 . A graduate in law, Marc-Antoine Calas wanted to become a lawyer, but he faced the anti-Protestant legislation which prohibited the "socalled reformed” from adopting this profession. He then worked in his father’s shop in Toulouse, where he was found dead on 13 October 97 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. 98 DESLANDRES (Dominique), op. cit. p. 714/1214. 99 LUTHER (Martin) published his 95 Theses in 1517. 100Convened in 1542, it took place between 13 December 1545 and 3 December 1563. 101 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. 102 Uprising of peasant Protestants in the Cevennes and Bas-Languedoc, during the reign of Louis XIV. 103 VOLTAIRE, Traité sur la tolérance, Paris, 1763. 38 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 appeals104. 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 interest105. 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 powers106. In addition, 104 Portal of justice : www.justice.gouv.fr/histoire-et-patrimoine-10050/proces-historiques10411/laffaire-calas-22774.html 105 BRUNET DE BROU, La religieuse malgré elle. Amsterdam 1720, Preface, p. 7. 106 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. 39 The claim of a separation between administration and justice appeared in the Cahiers de doléances, when they brought up the suppression of the stewards107. 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)108. In the field of jurisprudence, its application was particularly marked by the Blanco case109, in which the court of conflicts110 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. 107 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) 108 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. 109 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. 110 Court of Conflicts, case No. 00012 published in Recueil Lebon. 40 It is necessary to read the work of legal historians, such as Jean-Louis Mestre111 or François Burdeau112 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. Santini113, J.D. Mc Clunn114, H Schmitz115, C. Lefebvre, K. Frederico D’Ostilio116, Gianfranco Ghirlanda117, Matthews118, Edouardo Labanderia119, John J. Coughlin120, Niccolo del Re121, Ignatius Gordon122, 111 MESTRE (Jean-Louis), Introduction historique au droit administratif français ; Paris : Presses universitaires de France, 1985 ; in-8°, 294 pages [Collection Droit fondamental]. 112 BURDEAU (Francis), Histoire du droit administratif : de la Révolution au début des années 1970, Paris, PUF, 1998, 512 p. 113 SANTINI (P.), De referendariorum ac Signaturae historico-iuridica evolutione, Romae, 1945. 114 MC CLUNN (J . D.), Administrative Recourse: A Commentary With Historical Notes, Washington, 1946. 115 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. 116 OSTILIO (Frederico D’), Il diritto amministrativi della chiesa, Rome, Libreria Editrice Vaticana, 1995, 580 p. 117 GHIRLANDA Gianfranco, Introduzione al diritto ecclesiale, Roma, GBP ed. 2013, p. 7286/223. 118 MATTHEWS (K.), « the Development and Future of the Administrative Tribunal », Studia Canonica 18 (1984) 1-233. 119 LABANDEIRA, (Edouardo) « La Signatura apostolica y los Tribunales Administrativos », in « IC » 42, 1981, p. 665-772. 120 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. 121 DEL RE (Niccolo) La Curia romana. Lineameti storico-giuridici, Libreria Editrice Vaticana (collana Diritto canonico), 1998, 708 p. 122 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, 41 Canon 1601 of the 1917 Code123, 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 Glückseligen124, 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 Curia125, but it had no positive result because, as Agnes Demazière said126, "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 Thé- • 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. 123 This canon, repeated in Article 16 of the proper law of the Roman Rota, was the subject of an authentic interpretation. 124 WITT (Leopold), Das Leid einer Glückseligen, Waldsassen 1927. 125 ANGERER (A.), Letter to Pius X of 1 June 1927 (ACDF, SO, Dev. V. 1927 7, 1). 126 DESMAZIERES (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. 42 rèse, because it feared an unconscious capacity of reciprocal suggestion127. 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 Holiness128. 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 127 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. 128 RAMPOLLA (Cardinal) www.civitas-institut.com/content/view/305/28/ 43 commitment to the Church. Pope Pius XII granted the movement forgiveness in July 1939129. 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 Curia130. 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 priestsworkers, 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 exiled131. 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. 129 Cf. SERANT (Paul), Les déchirements des catholiques français, Paris 1989, Librairie Perrin, p. 94-116/283. 130 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). 131 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. 44 These positions of the Church in the face of worker-priests were relayed by the press132, and gave rise to misunderstandings recounted by many publications133. 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 time134. 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 132 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.” . 133 CESBRON (Gilbert), les saints vont en enfer, COLLONGE (André), alias GARDEY (Bernard), prêtre-ouvrier dominicain, Le scandale du xxe siècle et le drame des prêtres-ouvriers, 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. 134 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). 45 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…135. 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. Diocesan tribunal of Ouagadougou (Burkina Faso) 135 SARAH (Cardinal Robert), Dieu ou rien, interviewed by Nicolas PIAT, Paris 2016, ed Pluriel, p. 58/420. 46 Chapter 2 Principles, Organization and Procedures 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 level136. 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 salvation137. 136 GREINER (Dominique), « La justice » Article published on 22 November 2012 on CERAS www.doctrine-social-catholic.fr/index.php?id=6638 consulted on January 19, 2015. 137 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." 47 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 priests138, 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 souls139. More recently, the Magisterium confirmes this point in the Motu Proprio Mitis Iudex140, 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...141 Now that we have observed the fundamental principles of law and justice of the Church, and referred interested readers to more in-depth studies142, 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; 138 In this case, the provisions of canon 1647. Pastor Bonus, Art 15 140 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. 141 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. 142 Cf. Léon DEL AMO and Carmelo de Diego LORCA 139 48 • Canonical equity, which strives to balance justice and mercy. 1.1. 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 justice143. 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: 6. 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. 7. 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 justice144. 143 144 BENEDICT XVI, Caritas Veritate, Rome, 29 June 2009, No 6. Cf. Preface of the Code of Canon Law of 1983. 49 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 procedures145, 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 unknown146. 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. 1.2. 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 heaven147. 145 Namely the ex gratia appeal and hierarchical. 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 147 Matthew, 5, 20. 146 50 The Church teaches that it is proper to add charity: Charity transcends justice and completes it in the logic of giving and forgiving148. 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 reward149. 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 justice150. 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 "151. 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: 148 BENEDICT XVI, Caritas in Veritate No6 SAINT ISAAC the Syrian, Translated from French. 150 BENEDICT XVI, Speech to the participants of the plenary of the Supreme Tribunal of the Apostolic Signatura, 4 February 2011. 151 FRANCIS (Pope), talk on TV 2000 concerning the end of the Year of Mercy, Anne Kurian, Zénit, 20 November 2016. 149 51 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 trust152? Again, we will see in Chapter 9 how accessible it is in reality. 1.3. 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: 3. 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 discipline153. 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 charity154. 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 administration155 : 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. 152 JEAN-PAUL II 153Preface of the (Pope Saint), speech of 17 January 1998 to the Roman Rota. Code of Canon Law of 1983. 154 BENOÎT XVI Caritas in veritate, Rome 2009, ° 7. 155 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. 52 §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 body156. 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 weakness157. Looking further back, theologians agree that the Second Vatican Council valued the ecclesiology of communion. Thus, Fiorenzo Romita employs the term 156 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. 157 POMPEDDA (Francesco), « La notion de droit dans l’Église » in La documentation Catholique, 15 juin 2013, No 2294, p. 581-591. Translated from French. 53 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 158 . 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 interests159. 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 158 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, 159 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 171-172. Translated from Italian 54 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 contentiousadministrative 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 justice160. In practice, it is important to reconcile the respect of rights with ecclesial communion. In this regard, Manual J. Arroba Condé161 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. 160 BENEDICT XVI (Pope), Speech to the participants of the Plenary Assembly of the Court of the Apostolic Signatura, the Vatican, 4 February 2011. 161 ARROBA Condé (Manual J.) Diritto processuale canonico, Institutum Iuridicum Claretianum, Roma, Ediucrcla 199, p. 139/538. 55 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 power162." 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 twoedged 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! 2. 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.163 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 own164. Its particularity is the fact that the considerations of commutative justice give place to those of distributive justice, based on considerations of general interest: 162 TOXE (Philippe), « Quel principe de légalité en droit canonique ? », in L’année canonique, tome LVI (2014-2015), p. 230 Translated from French. 163 Hidulphe BILALI BANAZEBI : Défense des droits subjectifs des fidèles. Equité et légalité au canon 221 CIC 83, Paris, Harmattan 2015, p. 258/340. 164 GAUDEMET (Yves), Droit administratif, 20ème édition, Paris, L.G.D.J. ed, collection manuels, droit public, p. 21/544. Translated from French. 56 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 contracts165. 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 166 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 ones167? 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 Descard168, 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? 165 Ibidem. 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. 167 1 Cor. 6, 1. 168 DESCARD Marie-Paule, e-mail of 13 November 2016 to the author. 166 57 • • 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 association169 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: 169 Cf. Cass. soc. 20 janvier 2010, translated from French. 58 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 veil170. 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: 170 https://www.courdecassation.fr/jurisprudence_2/assemblee_pleniere_22/dite_baby_29565.html 59 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 situations171. 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)172; • The Church recognizes the value of civil justice173; • 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?" 174 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. 171 BASSETT (William W.) « Christan rights in civil litigation: translating religion into justiciable categories », The Jurist 46 (229-288). 172 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. 173 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. 174 LUKE, 12, 13-14. 60 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 separate175. 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. 175 MATTHEW, 19, 6. 61 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 trial176. 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 sacraments177, and the 18 May 2001 procedural norms of the Congregation for the Doctrine of the Faith178. In contrast, Pope Francis’ 4 June 2016 Motu Proprio "As a Loving Mother179" 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. 176 JENKINS (Ronny E.), « Diffamation of character in canonical doctrine and jurisprudence » in Studia canonica, 36 (2002), p. 453. 177 JEAN-PAUL II (saint) Sacramentorum Sanctitatis Tutela www.virgo-maria.org/Documents/eglise-conciliaire/2001-04-30_JPII_Motu-proprio-Sacramentorum-sanctitatis-tutela.pdf 178 www.vatican.va/resources/resources_norme_en.html, 179 www.vatican.va/content/Francesco/it/motu proprio_/documents/papa-francesco-motuproprio_20160604_come-una-madre-amorevole.html 62 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 States180. 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 Church181. 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 angle182 180 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. 181 COGHAN (Patrick J.), The Jurist, 46 (1986) p. 227. 182 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 63 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) 183. Aware that this is a complex notion, he refers to Labanderia184 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 began185 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 Spinelli186. 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. 183 ARROBA Condé (Manuel J.) Diritto processuale canonico, Institutum Iuridicum Claretianum, Roma, Ediucrcla 199, p. 139/538 p, traduit de l’italien par l’auteur. 184 LABANDEIRA (Edouardo), Trattado de derecho amministrativo canonico, Pamplune, 1998 p. 397-600. Translated from Italian. 185 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. 186 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. 64 He recalled that this was a recent concept, as it was almost entirely absent from the 1917 Code187, but the 1983 Code dedicated ample space to it in Book I on general norms188. 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 will189, and those which manifest a judgment relating to a fact190; • 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 acts191; • 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. 187 With the exception of canon 1520 §3, using the expression “administrative act” about the administration of ecclesiastical goods. 188 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.. 189 For example, the transfer of a parish priest, the recognition of an association of the faithful, the incardination a cleric. 190 For example, the registration of a baptism in the baptismal registry, the publication of the acts of the Church, the notification of a decision... 191 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. 65 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 favor192. 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? 192 DANIEL (William), « The Art of God Governance », Montréal 2015, Wilson & Lafeur, 275 pages. 66 To what extent are they applicable to the administration clergyman ? 193 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 194 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 theory195 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 193 LABANDEIRA (Edouardo), Trattato di diritto amministrativo canonico, Atheneo Romano della Santa Croce, Milano, dott. A. Giuffrè ed. 1994, p. 164/ 560. Translated from Italian. 194 IDEM, p. 170/ 560. 195 TOXE (Philippe), « Quel principe de légalité en droit canonique », L’année canonique LVI, 2014-2015, p.231 et 247. 67 appellant "claims that the contested act has violated any law, in its decision or in its procedure196 " 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 characteristics197. 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: 106. - 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 Act198. This article is the subject of an authentic interpretation199, 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 pro- 196 Cf. Canon 1732. 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. 198 Translated from Italian. 199 Latin version in AAS 63, (1971), p. 329-330. 197 68 cedure (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 lowerlevel tribunals. Cardinal Staffa200, Isaac Gordon201 and Zénon Grocholewski202 all claim the contrary, asserting that the two types of acts can be appealed203. 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 it204. 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"; 200 STAFFA (Dino), « Dissertationes de administratione iustitiae in Ecclesia” in Periodica, 61 (1972), p. 20-24. 201 GORDON (Isaac), « Noarmae speciales Supremi Tribunali Signaturae Apostolicae » in Periodica, 59, (1970), p. 100. 202 GROCHOLEWSKI (Zénon), « Il processo contenzioso amministrativo pressa la Signatura Apostolica », in Forum, 7 (1996-II), p. 288. 203 GROCHOLEWSKI (Zénon), « Il processo contenzioso amministrativo pressa la Signatura Apostolica », in Forum, 7 (1996-II), p. 288. 204 Supreme Tribunal of the Apostolic Signatura, "Declaratio of recursu Adversus Dicasterii decisionem Curiae Romanae, 9 November 1970," in Periodica, 60, (1971), p. 329. 69 • • • On 28 June 1988, article 123 of the Apostolic Constitution Pastor Bonus205 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…206 » 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 1978207, 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. 205 JEAN-PAUL II, Pastor bonus, Latin text AAS 80 [1988], 841-923, 1967; 87 [1995] 588. 206 Art 34 §1 of the Lex propria of the Supreme Court Cf. Benedict XVI Motu Proprio Antica Ordinatione, ASA 100 (2008) 513-538. STAFFA (Card. D.) Praesupposita recursus ad Alteram Sectionem Signatrae Apostolicae, Periodica 67 (1978) p. 524-525. 207 70 3. 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: Sacramental law Penal law Administrative law Other laws Judicial Procedure Nullity process Sanctions Contentious Administrative Recourse Ordinary process Administrative Procedure Convalidation, Sanation Sanctions Administrative and Hierarchical Recourse 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 initiative208. 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 208 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 71 which would be reported injured by an Act of the administrative authority allegedly illegitimate209. 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 1970210, 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 acts211. The Dicasteries and the Episcopal Conferences feared that the administrative courts would obscure their own authority212, by possibly equating too easily a recourse against an administrative act, with a challenge to their doctrinal authority213. 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 vague214. After various adventures described in detail by Sergio Aumenta215, 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 courts216. 209 DANIEL (William L.), “The doctrinal contribution of Zenon GROCHOLEWSKI to the canonical notion of administrative justice”, Studia canonica, 46 (2012), p. 183. 210 Acta commissionis, De procedura administrativa, Communicationes, II, 2 (1970), p. 191195. 211 Pontificia Commissio Codicis Iuris Canonici Reconoscendo, Schema canonum de procedura administrativa, Typis Polyglottis Vaticanis 1972. 212 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. 213 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. 214 Communicationes, V, 3, (1973), p. 235-243. 215 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. 216 Communicationes, V, 3, (1973), p. 235-243. 72 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 Universae217 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 Curia218, 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 section219 ; • 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 procedure220; • 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 leges221, 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 SupremeTribunal222; • On 21 March 1986 and 22 April 1987, the Commission for the Authentic Interpretation of the Code of Canon Law223 pronounced twice on issues concerning administrative recourse regarding the resignation of religious, 217 PAUL VI, (Blessed Pope), Regimini Ecclesiae universae. Latin text in AAS, 59, 1967, 885928. 218 AAS 60 (1968) p. 129-176. Articles 68 to 70, 91, 94, 95 and 122. 219 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. 220 AAS, 63, 1971, p. 329-330. 221 JEAN-PAUL II (Pope Saint), Sacrae disciplinae leges Apostolic Constitution endorsing the Code of Canon Law of 1983 222 AAS 80 (1998), p. 1818. 223 On 2 January 1984, it has replaced the Commission for the interpretation of the decrees of the Second Vatican Council. 73 • • • • members of societies of apostolic life and secular institutes224, 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 Ordinatione225. 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 us226. 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, 224 AAS 78 (1986), p. 1323. 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. 226226 A particularly clear synthesis was given by Zénon GROCHOLEWSKI, "Giustitzia amministrativa presso the Segnatura Apostolica," in Ius Ecclesiae, 4 (1992), p. 3-22. 225 74 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.227. 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 defense228. 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. 227 This canon opens section 1 of Book V on the trial, devoted to recourse against administrative decrees. 228 DANIEL (William L.), “The doctrinal contribution of Zenon GROCHOLEWSKI to the canonical notion of administrative justice”, Studia canonica, 46 (2012), p. 191. 75 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 communities229. 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 229 FRANCIS (Pope), Angelus address of 29 January 2017. 76 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)230. 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 decree231. Once the appellant has written, he must continue to monitor the time limits so as not to risk being prevented from taking recourse232. 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: 230 BENEDICT XVI (Pope), Speech to the participants of the Plenary Assembly of the Tribunal of the Apostolic Signatura, the Vatican, 4 February 2011. 231 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. 232 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. 77 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 Act233. 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 congregation234. 233 MARCHESI (Mario), « I ricorsi gerarchici presso i dicasteri della Curia romana », Ius eccclesiae, VIII, (1996), p. 77, translated from Italian. 234 We will see in Chapter 6 that the consecrated are required to comply with specific rules on recourse. 78 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 Santae235. 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: s. 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. 235 107. - 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. 79 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 Recourse236 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: 236 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. 80 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 law237: 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 limit238: s. 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. 237 In general, the term "proper law"designates the proper law of the Supreme Tribunal of the Apostolic Signatura. 238 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. 81 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: s. 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; 82 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: 1) Convening of advocate-procurators and the Promoter of Justice for a brief oral discussion; 2) Issuance of the decree of joinder of the issue by the Secretary; 3) Eventual resolution of exceptions raised by the advocate-procurators or the Promoter of Justice; 4) Establishment of a summary of the acts of the case; 5) Presentation of the conclusions of the advocate-procurators within the established time limit; 6) Presentation of the votum pro rei veritate by the Promoter of Justice; 7) Possible response of advocate-procurators within ten days; 8) Deliberation of the College; 9) Sentence of judges, including if necessary the immediate and direct effects of illegitimacy; 10) Sending of the decision to the parties concerned. This results in a decision which may fall into four broad categories: 1) The recourse is dismissed, because it is regarded as without foundation; 2) The recourse is accepted, with a finding of a violation of the procedure (in procedendo); 3) The recourse is accepted, with a finding of a violation of substantive law (in decernendo); or 83 4) 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. Yves Alain Ducass at Radio Immaculée Togo 84 Chapter 3: The Sources of Jurisprudence The absence of an official review of the jurisprudence of the Apostolic Signatura represents an objective difficulty to the study of its decisions239. To compensate for this lack, some authors have compiled special collections based on their own experience within the Supreme Tribunal, by conducting an on-site study or by analyzing the existing publications. We will stay on this path, studying jurisprudence with the modern technique of using databases. 1. Administrative Case Law One way to get a grasp of ecclesiastical administrative justice is to study the activity of the church courts competent to restore rights when people are aggrieved by a decision of the administrative hierarchy, namely, the second section of the Supreme Tribunal of the Apostolic Signatura, with contentious administrative cases240. This case law is therefore of crucial importance for our analysis, and so it is important to analyze it in detail, without limiting ourselves to what the Tribunal itself said, but crosschecking as much as we can all the information published in this area. After three years of work, it would take almost a thousand pages to print all the information gathered about the cases, of sentences and publications collected. This perspective would not be environmentally friendly, and on top of that the information would soon be obsolete, since new information is regularly published, specifying and complementing previous information. 239 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, 1997, p. 165, Translated from Italien. 240 Such cases are referenced by the Apostolic Signatura with "CA" for the contentious-administrative, "CG" for certain legal questions; "ES" for the review of sentences; " VT" for the vigilance on the courts; "CP" for the pontifical Commissions; "SAT" for the points of activity; " EC " for Italian, Portuguese and Brazilian civil effects, and finally "VAR" for a variety of subjects, such as response to collateral issues. 85 Therefore, we found it useful to establish a computerized database with fifty years of jurisprudence in contentious administrative cases, collecting three types of records: • 994 contentious-administrative cases, referenced by their registration number; • 2004 publications relating to these cases, with their bibliographic references; • 1223 relevant sentences issued by the second section of the Supreme Tribunal241. This base is formed from three main sources: • The annual activity reports of the Holy See, which generally contain a chapter dedicated to the Tribunal of the Apostolic Signatura, including a part pertaining to the second section; • Surveys of cases and contentious administrative sentences, published in whole or in part in the treatises, books and canon-law journals, with their commentary; • Testimony from the Catholic faithful, published in books or on the Internet. A database created from several sources allows us to gather a body of information that none of these sources would be able to give on it own. To connect several records relating to the same case from different sources, they must be referenced by a unique key. We have retained the registration number of the case given by the Supreme Tribunal242, rather than the date of the sentence and the protocol of the case, which are only published for a minority of cases admitted to discussion by the College of Fathers. To give it a scientific value, the data in the database must be verifiable, usable and mutable, i.e. capable of being supplemented if and when new publications appear. In this way we have decided to anonymize and make them accessible online, in the professional part of the site www.canonistes.org. To appreciate the interests and the parameters of the database thus created, it is important to describe precisely the data collected, and the way it is processed, structured, and presented, keeping in mind that their interpretation will be the subject of subsequent developments. The data collected are of four types: publications, cases, sentences and statistics. 241 Extract from the database on 1 January 2017. The latter is present in general in the form Prot xxxxx/nn CA or Prot xxxxx/nn Y CA, in which x, y represent figures and "NN,” a year between 1967 and 2017, corresponding to the fifty years of our study. 242 86 1.1. Publications Three series of publications are included in the database. The first series comes from information published annually under the heading "Second section" of the pages devoted to the Supreme Tribunal of the Apostolic Signatura contained in the unofficial reports of activity called Attività della Santà Sede. This series of publications, which evolve over time, allows access to two major types of information, arranged by year, relating to the contentious administrative case. • The first type of information consists of annual statistics, sometimes accurate243 and sometimes very vague244, about the number of cases registered and/or considered during the year; • The second type of information regards the cases heard and the sentences handed down by the Tribunal. The information published varies from year to year, but in general it includes the registration number, the date of the judgment, the type of petitioner, the dicastery which issued the decree that was appealed, the relator of the case and the decision rendered. The second series of publications consists of five collections of contentious administrative jurisprudence that we know about, namely: • That of Giuseppe Lobina from 1972, including 94 cases processed before this date245, • That of Frederico of Ostillio from 1976, containing 27 cases relating to members of religious institutes246, • That of Mickael Landau from 1979, including 62 cases of expulsions and transfers of parish priests247, 243 The statistics published in the activity report sometimes indicate the number of cases presented to the second section in the course of the previous period (sometimes from 1 October to 30 September, sometimes from 1 November to 30 October, often without indication of date), specifying the total number of cases handled, and its decomposition between the different procedures for which the competent Tribunal SAT, CG, CA, VT, VAT, ES, EC, VAR. The total number of the cases mentioned corresponds in general to the total numbers of cases distributed in the above headings (this is the case for example for the years 2006 to 2010), but such is not the case for the years 2011 to 2013. 244 The activity reports for the years 2000 to 2002 indicate only that the activity has been the same as for the previous years, "Attività simile a quella degli anni precedenti,” which is approximate becase the reports of other years show that the activity is never the same from one year to the other. 245 LOBINA (Guseppe), « Rassegna di giurisprudenza della setio altera », ME (1973), p. 305. 246 OSTILIO (Francesco D’), Istituti della vita consacrata nelle decisioni del Supremo Tribunale della Segnatura Apostolica. - [S.l. : s.n., 1987. - p. 280-344 ; 24 cm. (Pubbl. priva del front. Tit. della cop. - Estr. da: Clarentianum, vol. XXVII, 1987. 247 LANDAU (Mickael), « 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. 87 • • That of William Daniel from 2011, with 58 selected cases from the second section, of which 26 are contentious administrative cases248 ; That of Gian-Paolo Montini from 2014, containing 143 cases published between 1968 and 2012249. The third series of publications is comprised of the main treatises of administrative canon law and canonical journals which sometimes include information on canonical jurisprudence250. In the database, each publication relating to a particular case is characterized by: • The number of the case; • The name of its author; • The citation of the book or journal, with the numbers of pages where it is published; • The percentage of information on the case, contained in the publication; and • The language of the publication. 1.2. Contentious Cases In the simplest examples, a case is referenced by a registration number in the form Prot xxxxx/yy CA251. The figures "XXXXX" represent a incremental number related to the case252 and "yy", the last two digits of the year of registration, between 1967 and 2016. A case is generally brought by a petitioner, and contains the appeal of a decision of a Dicastery of the Roman Curia, and made the subject of a single sentence of the Secretary, the Prefect or the College. In fact, the situation is more complex, because: • The Supreme Tribunal brings together sometimes under the same registration number either other recourses of the petitioner, or the original appeal against a decision of a Dicastery—for example, a request for suspension of the initial administrative act, a question for a preliminary ruling, an appeal against a decision of the Court not to admit to discussion the 248 DANIEL (William), Ministerium Iustitiae, Jurisprudence of the Supreme Tribunal of the Apostolic Signatura, Montréal 2011 Wilson et Lafleur, 776 p. 249 MONTINI (Gian-Paolo), « Conspectus decisionum quae a Supremo Signaturae Tribunali in ambitu contentioso administrativo ab anno 1968 ad annum 2012 latae atque publici iuris factae sunt. Periodica 103 No1 (2014) p. 27-66. 250 The lists are included in the Appendix, with the year and the language of publication. 251 The word "Prot" is short for "Protocolato" and means registered, or referenced. 252 With the exception perhaps of recordings made during the first months of procedure. 88 • • • • • appeal lodged, a request to repair the damage, a new recourse on the implementation of the decision of the Tribunal253, etc.; The Tribunal sometimes groups together, under the same number, successive appeals on several different topics of discussion. Complex sentences result, where one part of the appeal is admitted to the discussion, while another part is not254; The Supreme Tribunal sends back some cases to other ones, without explaining the link between the cases; Some recourses are the subject of several cases and are then in the form of "Prot xxxxx/yy Z CA", where the generic letter Z corresponds to the letters A, B, C, etc., and reflects the existence of multiple cases pertaining to the same subject255 ; Conflicts of competence between the dicasteries, governed by Article 107 of Regimini Ecclesiae Santae, are registered with a suffix "CA", as contentious administrative recourses governed by Article 106 of the same Apostolic Constitution; The Tribunal records in the same manner as cases, some statements of the College of Cardinals which did not originate with a specific contentious administrative recourse. Even if this practice may be questionable, we adopt in the database the reference-method chosen by the Tribunal, referencing any activity of the second section registered under a registration number of the form " - - - - -/ - - CA" as per Article 123 of Pastor Bonus256. When, however, we know for certain that a single case involves several subjects or emanates from several petitioners, we divide it into multiple cases under the same number, by adding a suffix (letters A, B, or C) allowing them to be distinguished as different cases, and we do likewise with their respective sentences. The cases are then characterized by several dates recorded in the database when we find them: • The date of the initial act, at the origin of the conflict; • The date of the Dicastery’s decision which is the subject of contentious administrative recourse; • The date when contentious administrative recourse is made, or that of its registration by the Chancellor of the second section; • The date of the sentence of the Secretary or the Prefect, if there is one; 253 Ex: Prot 15721/83 CA. Ex: Prot 24388/93 CA. A first appeal had been dismissed in limine for lack of legitimacy of the petitioner, consisting of a group of parishioners. It was reintroduced by a single parishioner, and registered under the same number. 255 Ex: Prot 23443/92 CA ; 23444/92 CA ; 23445/92 CA ; 256 We exclude from the scope of our study the judicial cases " - - - - -/ - - CG" and the disciplinary cases " - - - - -/ - - VT " covered by articles 122 and 124 of Pastor Bonus. 254 89 • • • The date of the sentence of the Congress, if there is one; The date of the sentence of the College of the Fathers, if there is one; The date of the last action on the case, if it occurs after the previous sentence, for example for a reinstatement. Finally, the cases have several attributes, such as the names of the counsel representing the parties, which are sometimes indicated. Without including everything, so not to increase the database, we nonetheless consider the following attributes, which seem to us to be the most important to characterize the cases: • The nature of the Petitioner (layperson, cleric, religious); • The Dicastery with which the decree is concerned, with an additional reference for those quite frequent cases where the contested decision is not that of the Dicastery which is the subject of the original appeal, but that of the Tribunal which has not admitted this recourse to discussion; • The name of the Diocese where the case originates, in the language of the Curia and then in French, as well as the country to which it pertains; • The name of the relator or ponens of the case. Another difficulty arises when the publications do not clearly indicate the registration number of the case. So as not to lose the information, we make a provisional reference in the database257, with a provisional number of the type 10000/83 CA, until another publication allows us to find what the case is about. The cases published in the journal Apollinaris in the 1970’s do not have a registration number, but a 2014 publication of G.P. Montini makes reference to the pages of Apollinaris, indicating the registration number of the cases cited. Similarly, the activity report 1986258 does not specify the numbers of some cases, but instead refers to a publication of the sentence that permits us to identify the number. Another way to identify a case referenced in a publication, whose registration number is not specified, is to compare it to similar cases: One of the cases cited on page 1030 of the activity report of the Holy See for the year 2000 presents the same characteristics as those of case Prot. 8984/77 CA, cited in the literature, namely a recourse of a Sister of the Diocese of Vinonaen (the diocese of Winona, Minnesota, in the United States), against a decree of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, discussed at the meeting of the College on 15 December 1979, with Mgr. Pericle Felici 257 Ex: multiple of 1000, with a year corresponding to the years of the numbers of neighboring records. 258 Attività della Santa Sede (1986), p. 1249 90 as ponens. We have therefore replaced the provisional number Prot. 12000/00 CA by the real number Prot. 8984/77 CA of this case examined at the College in 2000, but recorded in 1977. The same goes for the cases Prot. 9498/77 CA, Prot. 10460/78 CA and many others. In some cases, we concluded that errors had crept into publications and we corrected the registration number or other information relating to a case. On page 951 of the 1981 activity report, the first case referenced has the number Prot 12300/800 CA, whereas it should read Prot 12300/80 CA, because the record emanates from cases recorded during the year 1980. On page 115 of the report of activity of 1992, mention is made of the case Prot. 23896/96 CA, which must be corrected in Prot. 23896/92 CA, for the sake of consistency with the year of the report and with the other publications mentioning this case. On page 1269 of the activity report of 1992, a 1993 case is registered under N° 2183 whereas it is 21883, etc. We are not the only ones to report such numbering problems; Javier Canosa likewise references the final sentence of 24 November 1973 under n° 2973/72 Prot CA, indicating that other authors have referenced it under n° 29723/72 Prot CA259. Despite the care that we have taken, we may have made interpretative errors by making such changes, and we are trying to identify and/or the correct them during our weekly work on the database, in the same way that we have tried to identify and correct the material errors in other publications260. In addition, we ask readers to point out possible errors that they have seen in the database261 and we ourselves proposed that the Supreme Tribunal verifies the data in its archives, without receiving any answer at that stage. 1.3. Sentences A sentence is a decision taken in a case by the Supreme Tribunal, adopted on a stated day and notified on another day. The canonical literature distinguishes different types of sentences depending on the Tribunal where it originated, and the type of decision. Even if the expressions used in the sentences are 259 CANOSA (Javier), « Giustizia amministrativa ecclesiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582 et note 13. In our opinion, the true number is Prot 2973/72 CA, because the cases with neighboring numbers of 29723/72 date back to 1989 and not 1973. 260 On page 784 of the report for 2004, a case was registered under no° 322551, while all the other cases are registered under a number of 5 digits. Consequently, the number of the case is most likely 32551 or 32251. We have affixed the No. 32000/01 Interim CA, until we know its true number. 261 Write to yves.alain@canonistes.org. 91 varied, it is important to standardize them in the database, to be able to create statistics later. In this regard, we reference sentences with the following attributes: • Instance: "Plen" for the plenary or the College of Fathers, "Cong" for the Congress, "Pref" for the Prefect, "Secretary" for the Secretary and "Chanc" for the Chancellor; • Date: the date of the sentence is in the classic form dd/mm/yyyy; • Decision: "RL" for rejection in limine, "NAD" for non admitted to discussion, "NCVL" for a rejection (non constat violatio legis), "CVL" for an affirmative decision involving the finding of a violation of a law, with a specification if it is on the merits of the case (CVLD in decernendo), if it is based on a procedural issue (CVLP in procedendo), or both (CVLPD); "LF" (litis finite) for a sentence declaring the end of a dispute, with an agreement between the parties or the abandonment of the appeal by one of them. • Complement: In some cases, we have completed the database by the full sentence or elements of the sentence (for example, desertus) allowing to better understand its meaning. 1.4. Statistics The Annual Activity Reports of the Holy See give some information of a statistical nature on the jurisprudence of the second section. These data will be compared to those that we have gathered elsewhere, so as to present statistical results which are as precise as possible in the third part of this book, section 2 of Chapter 9, devoted to statistical results. 2. The Database The previous pages have helped to clarify what is in the database. It is now time to specify the four major features offered to registered canonists: 1. The registration of a canonist allowing him access to the database; 2. The researching of cases that satisfy various search criteria; 3. The display of the characteristics of a given case; 4. Dialogue with the managers of the site www.canonistes.org 2.1. The Identification and Acces to the Database Like other professional online services, it is important to protect the database against unwelcome access from either machines or malicious people. To do this, internet users wishing to access the database are requested to register in 92 the professional part of the site, www.canonistes.org, by clicking on the button "CanonistesPro" located to the right of the site, below the photos. Internet users are then invited to respond to a quick questionnaire agreeing to sign up, to promise not to misuse the collected information, and to report any errors that they might find in the database or on the site. Depending on whether the person requesting access is a canonist or not, the webmaster of the site will then decide whether to grant access to the professional part of the website, and to the features described below. 2.2. Searching for Cases The first feature offered to canonists who are enrolled is the search engine, showing the data on cases recorded between two specified years, using all or part of the following information: Search Form • No. of case format = Prot. _ _ _ _ _ _ _ / _ _ CA • Years format = between aaaa and bbbb • Sentence format = dd/mm/yyyy • Petitioner format = See table of petitioners • Dicastery format = See table of Dicasteries • Country/diocese format = country and/or diocese • Author Format = See table of authors referenced • Object format = See table of objects referenced • Journals format = See table of books and journals • Ponens format = See table of ponens After submitting the request, the database will show the number of corresponding cases, as well as a table with one line per case, with all or part of the information below: 93 Prot …../.. CA; petitioner, dicastery, last sentence was known: the instance, place, date, ponens Depending on the number of cases displayed, the viewer may expand or refine the criteria, to obtain a reasonable number of results, and be able to select the desired cases. 2.3. Characteristics of a Case Once the list of cases is displayed, the viewer will be able to click on the hyperlink connected to a case of his choice, which will entail the automatic display of its characteristics in the following form: Case Place Petitioner Dicastery Related Cases Publications Events and Decisions Commentaries New Comment Prot. _ _ _ _ _ / _ _ CA • Diocese : ……………….. • Country : ……………………… • «………….. »262 • «………….. » • Prot. _ _ _ _ _ / _ _ CA • Author1 / Reference1 / page • Author2 / Reference2 / page • Author3 / Rference3 / page • …/… Origine of the conflict : dd/mm/aaaa Decree of Congregation : dd/mm/aaaa Filing the Recourse : dd/mm/aaaa Decision Secretary : dd/mm/aaaa Decision Congress : dd/mm/aaaa College Sentence : dd/mm/aaaa Other Sentence 1 : dd/mm/aaaa Other Sentence 2 : dd/mm/aaaa …. /…/… : «……….. » commentary by….. …. /…/… : «……….. » commentary by….. «………….. » 2.4. The Display of a Sentence As indicated earlier, the display of the characteristics of a case allows access to a list of sentences, when these have been published. It is then possible to display the attributes of this sentence by clicking on the provided hypertext link, so as to obtain a display of the following type: Sentence Case : Prot. _ _ _ _ _ / _ _ CA 262 Even if some publications like Ministerium Iustitiae (op. cit.) indicate the name of the petitioner or clarifications which allow us to situate it, we have decided to never give such details, simply providing the status of the petitioner: Secular, priest, religious, legal person. 94 Place Petitioner Dicastery Sentence… : dd/mm/aaaa Commentaries New Comment • Diocese : ……………….. • Country : ……………………… • «………….. » • «………….. » Source : author, bibliographic reference Decision : decision code, key words …. /…/… : «……….. » commentary by ….. …. /…/… : «……….. » commentary by….. «………….. » 2.5. Dialogue with Administrators If the reader finds an error or missing information, he is asked to point it out in the space provided for this purpose on the line "New Comment.” More generally, the persons registered in the professional part of the site, www.canonistes.org, will be able to talk at their convenience with the managers of the site, to receive the trimestrial newsletter, including the main changes made to the database, or on any other matters to advance the understanding of the administrative justice of the Church. 95 Abbot Jean Werkmeister, giving one of his canon law lectures at the University of Strasbourg in May 2011, a few weeks before his death. 96 Second Part: Case Law 97 In Matthew’s Gospel, Jesus insisted on the need to put the Word of God into practice: Not everyone who says to Me, “Lord, Lord,” will enter the kingdom of heaven, but only the one who does the will of My Father in heaven.... And everyone who listens to these words of Mine but does not act on them will be like a fool who built his house on sand263. In light of this, the Secretary of the Supreme Tribunal recalled the importance of praxis in the field of administrative justice: It is important to keep in mind not only the theoretical ideal, but also praxis, with an eye toward seeking effective ways to improve the protection of the rights of the faithful in the Church264. Thus we will devote the heart of this book to case studies developed from our database, from collected articles on jurisprudence, and also from testimonials received. Here is an overview of the following chapters: Chapter 4 : Administrative Justice for the Laity Even if, by virtue of their baptism, all faithful Catholics have an equal dignity, the laity are at the bottom of the hierarchy of governance. As such they are sometimes the subject of negative administrative decisions of the ecclesiastical hierarchy, and so one could expect that they would initiate numerous contentious administrative recourses, but we will see how it is in fact. This chapter presents disputes involving the laity, and the role of ecclesiastical justice in resolving them. Chapter 5 : Administrative Justice for the Clergy Clerics, and especially priests, can be both victims of their hierarchical superiors and causes of administrative disputes for other persons. Additionally, they are public persons, and this reality involves all the difficulties that affect them, particularly in cases of abuse of minors. In reviewing the law and ecclesiastical jurisprudence, it is reasonable to ask whether we are in the process of evolving from a period of discretion, to a period of the principle of precaution, in which punishment is meted out without necessarily ensuring that the rights of defense of priests have been respected. 263 MATTHEW 7, 21.26 DANEELS (Mgr Frans, O. Praem), « Il contenzioso amministrativo nella prassi », in La giustizianell’attività della chiesa : il contenzioso amministrativo, a cura di Edouardo Baura e Javier Canosa, Giuffré 2006, p. 325/ 522. (Double translation) 264 99 Chapter 6 : Administrative Justice for Religious Members of Institutes of Consecrated Life and Societies of Apostolic Life have made a choice of obedience which subordinates their freedom to the rules of their institute. Here also disputes occur, and we will see what is specific to their state of life in disputes and the means to resolve them. This chapter attempts to give a general overview. Chapter 7 : Administrative Justice for Charisms Two inter-related situations have caught our attention. They involve private revelations and risks of sectarian drift. In these two kinds of situations, the view of the hierarchy frequently competes with the view of the charism, in a way that creates conflicts. This chapter attempts to show the role of justice in resolving them. Distinguished professors have critiqued this chapter, unusual in canon law. In contrast, one reader has estimated that this chapter constitutes the heart of the book, in doing justice to an ecclesial situation that needs to evolve. Chapter 8 : Administrative Justice by Dicastery Three Dicasteries each monopolize close to 30% of administrative recourses, but one of them is only rarely mentioned in the canonical literature. This chapter clarifies the question, citing contentious administrative recourses by Dicastery, since canon law requires the intervention of a Dicastery so that a recourse can be formulated with the second section of the Supreme Tribunal. 100 Chapter 4: Justice for the Laity At the end of 2014, the number of Catholics in the world was estimated at 1.27 billion265. 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 authority266. 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 Church267. 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 268" to the extent that they obtained their mission from Christ Himself, by virtue of their baptism, not a mandate of the clergy269. Some bishops make a wide appeal to the laity, such as the bishop of Dallas270: 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 laity271 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 265 According to the Pontifical Directory 2016 SARAH (Card. Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 249/420. 267 PAUL VI, Dogmatic Constitution on the Church Lumen Gentium, No 37. 268 Cf. KASPER (Card. William), L’Église catholique, son être, sa réalisation, sa mission. Paris, Cerf, Collection Cogitatio Fidei avril 2014, p. 300/592. 269 PAUL VI (Blessed Pope), Apostolicam actuositatem, 270 He was promoted to the Prefect of the Dicastery for the Laity, Family, and Life. 271 FARRELL (Mgr. Kevin) Prefect of the Dicastery for the Laity, Family and Life., According to Anne KURIAN, Zénit, 16 novembre 2016. Translated from French 266 101 also become the source of much misunderstanding and of new controversies272. Testimony gathered in Dakar273 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 laity274, 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 275 , 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 Clergy276. 272 KASPER (Card. William), L’Église catholique, op. cit. p. 295. Translated from French. Saint Augustine Center of Dakar, symposium of 22-24 February 2017 on the theme of "Repentance: Genesis and timeliness.” 274 Extraction on 7 November 2016: 88 appeals have been filed by men, 43 by women, 32 by men or women. 275 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. 276 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 273 • 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. 102 Dicasteries involved in litigation of laypersons Doctrine of Faith APSA Bishops Education Evangelization of people Oriental Churches Laymen and family Segnatura Apostolica Consacrated 0 50 100 150 200 250 Here are also the main themes concerning contentious cases regarding the laity, which are subjects of contentious administrative recourse. Principal subjects of contentious complaints from laypersons Associations of the Faithful Imposed Exclaustrations Transfers of Parish Priests Reduction of Churches to Profane Use Reshaping Parishes 0% 10% 20% 30% 40% 50% 60% 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: 1) Reshaping parishes; 2) The reduction of churches to a profane use which is not improper; 3) Specific decrees concerning the laity; 4) Associations of the faithful; 5) 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 103 in canons 515 to 520 on "The Internal Organization of the Particular Churches.” In her thesis277, 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 Catholics278, 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 277 ABBAL (Elisabeth), Paroisse et territorialité dans le contexte français, Paris, Cerf, 2016, 520 p. 278 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. 104 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 adoption279. 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 procedure280, 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 status281. 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-Monzon282 et de Lerida283 disagree about the property of the ecclesiastical heritage of Frange d’Aragon284 in a dispute characterized by nationalistic tensions between Catalans and Aragonese, following changes to the borders between the dioceses. 279 Congregation for the clergy, "Procedural guidelines for the modification of parishes and closure of parish churches,” Roman Replies, (2013). 280 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) 281 Translation of the author of ASS 1992, p. 1117, concerning recourse No. 22036. 282 Spanish diocese created in 1995. 283 Lleida in Spanish. 284 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. 105 Several books285 and internet sites286 describe the epic civil and canonical litigation which resulted287. 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. 2. 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 press288 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 heritage289 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 Lille290, 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. 285 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. 286 For example, the art-history site of Antonio VALMAS. as: www.antonionavalmas.net/spip.php?article56 consulted on 11 August 2015. 287 Antonio VALMAS recounts 444 steps on the abovementioned site. 288 RAVINEL (Sophie of), “Des maires sont contraints de détruire leur église.” Le Figaro, 18 May 2007. www.patrimoine-religieux.fr/ 289 www.patrimoine-religieux.fr/ 290 The Church of Saint Louis of Lille has been transformed into a Center for the Safeguarding of Heritage. 106 2.1. Applicable Law The Code of Canon Law provides the definition of a church291, recalling the rites of dedication or blessing, which now prohibit profane usage of the building292. 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 character293. 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 sold294. It is the same in the United States295. In the case of France, it is otherwise since there are approximately 45,000 parish churches, of which 35% were built in the nineteenth century296, and for 291 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. 292 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. 293 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. 294 SCHÖCH Nicholas, “Deutsche Welle, Churches Profit from Foundation” Boom, 29 January 2006, www.dw/article/0,2122,1846722,00.html, p. 493, note 27. 295 PROVOST (James H.), « Some Canonical Considerations on Closing Parishes », The Jurist, 53 (1993), 362. 296 « 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-deglises-menace-le-patrimoine-13-08-2013-1713609_3.php 107 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 occur297 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 2011298, 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 Ordinary299. 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 297 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 298 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 299 HABERT (Mgr. Jacques), « Ces églises qui font l’Église » Document of the bishops, Conference of the Bishops of France, No. 6/7, Paris 2017. 108 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 workers300. 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 »301. Following the example of the Gregorian University302 and the Canon Law Society of America303, the digital library of Canonists without Borders304 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 dispute305, 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 306. 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 demolition307, repair308, or reduction of a church to profane use, for example in cases of suppression or the regrouping of parishes309. These sentences have been the subject of analysis on the part of Mgr. Frans Daneels, 300 La Dépêche du midi, Decazeville, 2 November 2017. Congrégation pour la cause des saint, instruction « Le reliquie nella Chiesa: Autenticità e Conservazione » du 16 décembre 2017. 302 https://www.iuscangreg.it/diss.php?lang=EN 303 www.clsadb.com 304 www.canonistes.org/biblio 305 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. 306 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). 307 Prot No 17447/85 CA published in Ministerium Justitiae…, Montréal, 2011, 441-528. 308 Prot No 21024/89 CA, published in Notitiae 26 (1990) 142-144 and in Ministerium Justitiae, op. cit. p. 461-466. 309 Prot. NO 24388/93 CA published in Ministerium Justitiae…, op. cit,. p. 502-528. 301 109 in 1998310 then in 2010311, as well as Mgr. Gian-Paolo Montini in 2000312, Nicholas Schöch in 2007313, and Javier Canosa in 2011314. 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 Number of cases 1990-1999 2000-2009 2010-2013 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 accepted315; 310 DANEELS (Mgr; Frans), « Soppressione, unione di parrochie e riduzione ad uso profano della chiesa parrochiale », Ius Ecclesiae 10 (1998) 111-148. 311 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) 312 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.. 313 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. 314 CANOSA (Javier), « Giustizia amministrativa eclésiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582. 315 Prot No 21024/89 CA, Notitiae 26 (1990) 142-144 and Ministerium Justitiae, op. cit., p. 461-466. 110 • • • • • • • • • 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 use316; The application of canon 1222 §2 requires that all the conditions imposed are met317. The absence of negative impact on the good of souls is not a sufficient reason318; 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 faith319; 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 heritage320. 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 decisions321 ; 316 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. 317 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. 318 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. 319 Idem. 320 Prot. 31208/00 CA, unpublished decision cited by Nicholas Schön (op. cit.. p. 502 note 59). 321 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. 111 • The altar, and other objects involved in worship, do not lose their sacred character322 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 easements323. 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 church324. 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 bishop325. 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 322 Cf. can. 1238 § 2. Coram BURKE, 11 May 2011, Prot41719/08 CA, The Jurist 73 (2013) 597-643 324 Coram BURKE, 11 May 2011, Prot41719/08 CA, The Jurist 73 (2013) 597-643 325 Mgr DANEELS in op. cit. p. 168. 323 112 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 use326. 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. 3. 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 nonCatholic Christians with regard to their access to baptism and the other sacraments. 3.1. Admission to the Sacraments Canon law lists impediments for admission to the catechumenate (cf. Canon 788327 and particular law328) and for baptism, conditioning access to the other sacraments (cf. canons 843329 and 865330). 326 Coram BURKE, 11 May 2011, Prot. 41719/08 CA, The Jurist 73 (2013) 597-643 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. 328 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. 329 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. 330 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. 327 113 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 aware331. This can result in unjustified refusal for admission to the catechumenate, refusal of baptism and other sacraments332, 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 catechumenate333. 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. 331 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. 332 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. 333 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. 114 3.2. 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 level334. 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 rector335 ; • Refusal of admission to sacred orders336 ; • Dismissal from the physical plant of St. Peter’s Basilica337; 334 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. 335 Prot 30266/99 CA cited by ASS (1999) p. 936. 336 Prot 30677/99 CA and 30678/99CA cited by ASS (1990), p. 892. 337 Cases not referenced, cited by ASS (1978) p. 625. 115 • • • • • Removal from the job of Defender of the Bond338; Expulsion from a house belonging to the Church339; Suspension of a married deacon340; Removal from the position of seminary professor341 ; 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 Faith342. Later on343, 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 Tribunal344. 4. Associations of the Faithful « “Lay associations have always been present throughout the Church's history”, Saint John Paul II reminded us345, 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 338 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. 339 Prot. 23208/92 CA not admitted to discussion by decision of the Congress of 23/11/1992. 340 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) 341 Cf. ASS (1988), p. 1405 Coram Stickler, on 28 January 1988. Registration No. (Prot) not indicated. 342 Case cited by the ASS (1987), p. 1292. 343 Case cited by the ASS (1987), p. 1292. 344 Cf. art 136 of the General Regulation of the Roman Curia, 1999. 345 JOHN-PAUL II, Apostolic Exhortation Christifideles Laici, No. 29. 116 “...the legitimacy of the autonomy of the laity in constituting and directing lay associations, distinguishing clearly on this occasion ecclesiastical associations from lay associations346. The Second Vatican Council effectively quoted the resolutio Corrienten347 in the 1965 Decree on the Apostolate of the Laity 348, 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 existing349. In 1983, the Code affirms this right of the faithful and then, in 1988, the postsynodal 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 nature350. 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 Statutes351. Yet the number of associations of the faithful that have been juridically recognized is low, as Olivier Echappé recalled: 346 MIAYOUKOU (Hervé), « L’émergence en droit canonique des associations privées de fidèles » L’année canonique, 52, 2010, p. 249-256. 347 Cf. S.C. of the Second Vatican Council, resolution Corrienten. 13 November 1920: AAS 13 (1921), p. 139. 348 JOHN-PAUL II (saint), Christifideles laici 349 PAUL VI, Apostolicam actuositatem, No 19. 350 Site of the Pontifical Council of the Laity, www.laici.va, consulted on 27 November 2011 in the rubric "Twenty years after." 351 FRANCIS (Pope), Speech of 17 June 2016 before the Assembly of the Pontifical Council for the Laity.Translated from French. 117 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.352 Based on publications of the Pontifical Council for the Laity353 and some dioceses, the author believes that in 2011 the number of associations of the faithful per Catholic354 is approximately one thousand times less than the number of civil associations per inhabitant355. Cath. 1 Can Ass Ass. / faith. 3 M. hab. 4. Civil Ass / can Ass / Ass. M. hab. civ Ass 6 7 5 2. 122 0,12 60,00 9 910 78 2,17 60,00 1,33 Diocese of Paris New York / United 0,45 States 0,79 Diocese of Créteil 11 8,29 2,21 983 803 16 397 7 568 71 222 32 208 3 885 19 41,85 3 3,81 312,00 1 900 6 090 146 000 1,31 39 000 29 751 7 800 Diocese of Saint Denis 0,90 0,44 Diocese of Nancy 1 1,11 1,51 71 162,10 0,73 International Associa- 1 000 tions France 36,00 165 1 354 45 000 29 871 27 000 15 912 98 11 616 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: 352 ECHAPPE (Olivier), « Les biens des associations d’Église », L’année canonique, 47, 2005, p. 51-62. 353 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 354 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. 355 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. 118 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 institutions356. 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 purposes357. 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. 2. 3. 4. 5. Canon 299 §3358, for private associations whose statutes are recognized by competent authority (recognitio); Canon 322, for associations with legal personality (probatio)359; Canons 298 §2360 and 299 §2361, for associations praised and recommended by the Church; Canon 300362 for private associations with the word Catholic in their name; Canon 301§3363 for public associations of the faithful; 356 RATZINGER (Cardinal Joseph), « Entretiens sur la foi », remarks reported by Vittorio Messori, Paris, 1985, Fayard, p. 48/252. 357 CIC/83 C 215 358 Canon 299 §3. No private association of the Christian faithful is recognized in the Church unless competent authority reviews its statutes. 359 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 360 Can. 298 §2. The Christian faithful are to join especially those associations which competent ecclesiastical authority has erected, praised, or commended. 361 Can. 299 §2. Even if ecclesiastical authority praises or commends them, associations of this type are called private associations. 362 Can. 300 No association is to assume the name Catholic without the consent of competent ecclesiastical authority according to the norm of can. 312. 363 Can. 301 §3. Associations of the Christian faithful which are erected by competent ecclesiastical authority are called public associations. 119 6. Canon 302364 for clerical associations365. 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 mentioned366. 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. 364 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. 365 In terms of competencies, the Supreme tribunal stated that the recourse relating to the piousassociation negotiations is the responsibility of the Congregation for the Clergy, not the Council for the Laity (Prot. 13782/81 CA). 366 JOHN-PAUL II, post-synodal Apostolic Exhortation Christifideles Laici of 30-12-1988 (AAS 81 [1989] 393-521. 120 Since then Pope Francis has several times referred to the criteria of ecclesiality367, 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 recognition368, there is in fact a definite inconsistency in interpretations by canonists: • On the one hand, Cardinal Lluis Martinez Sistach369 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. Navarro370 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 view371; • On the contrary, S. Pettinano spoke of a right to recognition372, 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 faithful373”; 367 FRANCIS (Pope), Evangeli Gaudium, No 130. 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. 369 MARTINEZ SISTACH (cardinal Lluis), Associations of Christ’s Faithful, coll. Gratianus, Montréal, Wilson & Lafleur Ltée, 2008, 24x16, p. 113/174 p. 370 NAVARRO (L.), Diritto di associazione e associazioni di fedeli 1991, pp. 290,, cf. Note 2. 371 PAGE (Roch), « La reconnaissance des associations de fidèles » in Studia canonica, 19, (1985), p. 332-333. Translated from French. 372 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. 373 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, 368“À 121 • Finally, canonists such as P.A. Bonnet374 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. 300375 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 EOS, 1989, pp. 397-418. Cited by P.A. Bonnet, Recognitio statutorum consociationum privatum, in Periodica 90 (2001) 3-43, p. 41 note 184. 374 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. 375 c. 299 §3. No private association of the Christian faithful is recognized in the Church unless competent authority reviews its statutes. 122 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 association376. Even if the association is recognized, we can expect that the interventions of the bishop will probably cause conflicts: “Agape377”, 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 press378. 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 recourses379. 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); 376 Riposte catholique, 23 June 2017. https://agape-lepuy.fr/qui-sommes-nous/historique-agape-nd-du-puy/ consulted on 11 july 2017. 378 Salon Beige 9 July 2017; Riposte catholique, 10 July 2017. 379 ASS (2014), p. 845. 377 123 • • • the possibility of making recourse while legal capacity has not been recognized (Prot. 17445/ 85 CA and prot. 17914/86 CA) 380; 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 petitioner381. 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: Q. – 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? A. – 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 380 NAVARRO (Luis) “La tutella giudiziaria dei sogetti senza personalità giuridica canonica » in Studi giuridici XLV, Roma 1977, p. 211-228. 381 Registration Number (Prot) not indicated, cf. ASS (1989), p. 1218, 9th case. 124 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 Act382. 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. 5. 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 army383. 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 goods384. 382 Prot. 39305/CA, RR (2007), p. 43-44. « Canon 1311 and followings ». Prot. 48091/13 CA, in Monitor eccelsiasticus, CXXXI (2016), p 37-39. 384 ECHAPPE (Olivier), « Les biens des associations d’Église », L’année canonique, 47, 2005, p. 51-62. Translated from French. 383 125 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 punishment385. 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 Cameroon386. 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 385 Notitiae 26 (1990) 711-713 and Ministerium Iustitiae, op. cit., p. 603. BIDZOGO (Emmanuel), Eglises en Afrique et autofinancement, L’Harmattan, Paris 2006, p. 87 et 88/140. 386 126 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 §.2387, 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 too388. 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 again389 ». 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 387 C. 1287 §2. Les administrateurs rendront compte aux fidèles de l’usage des biens que ceuxci ont offerts à l’Église, selon des règles à établir par le droit particulier. 388 Forum de la famille catholique, http://forumfc.clicforum.com/t2736-Refus-de-la-communion-a-genoux.htm 389 Ibidem 127 wanted to receive it kneeling, and not standing. The Court ruled in favor of the complainants390. 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 Species391. 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 apply392. 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)393 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 390 COGAN (Patrick J.), the protection of rights in hierarchical churches: an ecumenical survey, The Jurist, 46 (1986), p. 227. Double translation. 391 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. 392 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. 393 WACKENHEIM (Charles), Une Église au péril de ses lois, Montréal, 2007, Novalis, p. 27/204 p. 128 before enrolling their children in catechism classes. These members were directed to Canonists without Borders in order to verify the current law394. 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 Spotlight395 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 danger396. 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. 397" 394 www.canonistes.org/un-pretre-peut-il-mettre-des-conditions-a-linscrition-au-catechismeet-notamment-le-fait-davoir-paye-le-denier-du-culte/ 395 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. 396 FRANCIS (Pope), Apostolic Letter in the form of a Motu Proprio: "As a loving mother"» 397 Cf. Apic et KNA, www.news.va/fr/news/les-depenses-faramineuses-de-leveque-de-limbourg-e 129 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 measures398. 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. 398 Zenit, 8 June 2017, Anne Kurian 130 Chapter 5: Justice for the Clergy According to data as of 31 December 2012, published in the Statistical Yearbook of the Church399, 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 Asia400. In Europe, the priests are older401. • 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, Huysmans402 and Rik Torfs403 have examined the rights and obligations of clerics, by distinguishing: • The rights of clerics, such as the common rights of the faithful (c. 208221), 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. 399 www.eglise.catholique.fr/vatican/statistiques-de-leglise-dans-le-monde/ consulted on 15 October 2016. 400 In France in 2015, there were approximately 10,000 priests younger than 75, of which nearly 2000 were from abroad. 401In 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. 402 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. 403 TORFS (Rik), “Rights and Legitimate Expectations of Clerics,” course given at the Faculty of Canon Law of Louvain and Strasbourg, 2014. 131 • 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 diocese404; • For hierarchical recourse, a survey by James H. Provost of American dioceses405; • For contentious administrative remedies, an investigation by Michael Landau406 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. 404 ROZE (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. 405 PROVOST (James H.), “Recent experiences of administrative recourse to the Apostolic See”, in The Jurist, 46 (1986), p. 142-163. 406 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. 132 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.407 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; 407 Gandhi himself used to say that if he had to make a choice only between violence and cowardice, he would advise violence. 133 • 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, national408 and regional409 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 all410. 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 recourse411. James Provost gave us a clearer vision 408 Ex ; l’Union du Clergé Béninois (UCB) ou l’Union fraternelle du clergé ivoirien (UFRACI). Ex : l’Union régionale des Prêtres d’Afrique de l’Ouest – URPAO 410 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. 411 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 409 134 from two surveys conducted in the United States with all the dioceses, about cases of hierarchical recourse brought between 1969 and 1984412. 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 deacon413; • 44 recourses filed by bishops, generally against decisions of the Curia, which had ruled in favor of a subordinate’s hierarchical recourse414; • 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 Life415. • 17 relate to the Congregation for the Evangelization of Peoples, • 13 relate to the Congregation for the Oriental Churches, 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%. 412 PROVOST (James H.), "Recent Experiences of administrative recourse to the Apostolic See,” The Jurist 46 (1986), p. 142-163. 413 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." 414 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. 415 We will deal with this type of case about recourse for religious. 135 • • • • 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 countries416, decided that "Each bishop will be able to appoint parish priests for six years, with the possibility of extension417" 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 416 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. 417 General Order in Council of 13 June 1984, in Official Bulletin of the Episcopal Conference, 29, 1984, p. 444. 136 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 conduct418, as to allow a bishop greater efficiency in the proper exercise of parish ministry within his diocese. In effect, canon 1740419 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 reason420, which is not always without difficulties. The reasons that could lead to removal421, 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 Father422 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 418 Removal and transfer may be accompanied by censures and expiatory penalties (c.13311338). In addition, removal occurs as of right for the cases listed in c.194. 419 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. 420 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, §3 421 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. 422 VESIN (Pascal) Être frère, rester père. Prêtre ou franc-maçon : pourquoi choisir ? Paris 2014, Presses de la Renaissance. 137 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 rejected423. 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 423 NOURRICHARD (Mgsr. Christian), Pastoral letter of 14 January 2011, published in Evreux catholique, and accessed 7 December 2017. 138 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 Provost424, 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"425)? It is doubtful. […] The remedies are inadequate and sensitivity is lacking among the judges426. 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 tribunal427. 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. 424 PROVOST (James H.), “Recent experiences of administrative recourse to the Apostolic See”, in The Jurist, 46 (1986), p. 142-163. 425 C. 1742 §1. 426 HERVADA (Javier), Pensamientos de un canonista en la hora presente, Navarra Gráfica Ediciones, Pamplona, 2004. p. 129. 427 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. 139 1.2. Transfers Mutatis mutandis, the procedure of transfer of parish priests is treated in canons 1748428 to 1752. Jurisprudence has stated the following points, among other things: • In accord with canon 1747 § 3429, contentious administrative recourse effectively suspends the appointment of a new parish priest430; • 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 Grocholewski431, 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 Congregations432. 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 office433. The procedure for the removal of bishops is not specified, but at times it gives rise to controversies that the press comments on434. 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 Gaillot435, transferring him to the titular see of Parténia436. On the same day 428 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.. 429 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. 430 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. 431 GROCHOLEWSKI (Zenon), « L'autorità amministrativa come ricorrente alla ectionaltera della Segnatura Apostolica », Appolinaris 55 [1982) 752-779. 432 Lumen Gentium 21. 433 BOURDIN (Anita), Rome, 1 août 2013 (Zenit.org) 434 HIEBEL (Jean-Luc), « L’affaire Gaillot, les médias et le droit » in RDC 45, 1995, p. 101-118. 435 Revue de droit canonique (RDC), tome 45/1, Strasbourg 1995, p 74-162. 436 Former diocese of Algeria, disappeared under the sand at the end of the 5th century. 140 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 437" The decree of transfer isued by the Congregation of Bishops has not been made public, but according to Francis Mesner and Jean Werkmeister, it is not a renunciation, since Mgr. Gaillot was received on 12 February 1995 by the prefect of the Congregation for Bishops, and he refused to submit his resignation, after having received the Prefect’s request. It is not a criminal sanction, since there was no trial, no removal ipso iure. It is not an involuntary transfer of an office-holder, since it is a seat and not an office. It remains a removal by administrative decree of the Congregation, which is without doubt the decision adopted, probably motivated by a breach of the ecclesial communion. The decree not being approved in forma specifica by the Pope, it would be subject to contentious-administrative recourse, but this has apparently not taken place. With regard to transfers of priests-religious, this includes additional features which are discussed in the following chapter. 2. Administrative Sanctions In addition to transfers and removals of parish priests, which are the subject of a special procedure, there are other types of sanctions that fall within the normal procedure of the recourse (cc. 1742-1739). Fortunately, many cases are resolved by dialogue, as can be seen in a particularly interesting case, reported by Rik Torfs438: In 1992, Rik D., the parish Priest of Buizingen, in the Diocese of Mechelen-Brussels, published a book entitled De laaste dictatuur439, 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. 437 MESNER (Francis) et WERKMEISTER (Jean) « les aspects canoniques de l’affaire Gaillot, in RDC 45, 1995, p. 75-82. 438 TORFS (Rik), « L’affaire Gaillot et la liberté d’expression » in RDC 45, 1995, p. 83-94. 439 DEVILLE (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. 141 This procedure is consistent with that that the Cardinal Ratzinger evoked in 1985440, but unfortunately, things do not always go so well. 2.1. Incardination and excardination Without getting into the details of specialized publications441, 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 267442, 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 part443 and gave a basis for the future of canon 268§1444 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 440 Cf. Chapter 8: Appeals relating to the Congregation for the Doctrine of the faith. 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. 442 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. 443 Prot 9375/77 CA, comunicationes 10 (1978) 152-158. 444 Prot 9375/77 CA, comunicationes 10 (1978) 152-158. 441 142 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 request445 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 case446. 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 for447, or who have been removed from one that they had received448. With regard to admission to holy orders, 445 Request for mediation proposed to "Canonists without Borders" on 26 July 2016. Prot. 9375/77 CA LABANDEIRA (Edouardo), IC 21/41 (1981) 393-417 ; Communicationes 10 (1978) 152-158 447 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. 448 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). 446 143 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 orders449, or for a refusal of incardination450. 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 this451. 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 confessions452, to preach453, to teach454, to hold a office455, etc. Sometimes these refusals and restrictions on the exercise of priestly ministry are based on canon 223 §2456, 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 diocese457. Here is an example of jurisprudence458: 449 Prot. 34180/02 CA against a refusal of admission to sacred orders. Prot 9375/77 CA. 451 Riposte catholique, 29 August 2017. 452 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 453 Prot 38098/06 CA 454 Prot 10977/79 CA ou 15573/83 CA. 455 Prot. 185/70 CA, in ME (1973) 1-4, p. 303 ; Prot 6023/74 CA 456 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. 457 Pontifical Council for Legislative Texts, "Explanatory Note. Further clarification for the application of canon 223 §2,” 8 December 2010, Communicationes 42 [2010], 280-81. 458 Prot. 48563/13 CA, in Monitor eccelsiasticus, CXXXI (2016), p 21-26 450 144 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. Begus459 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 decision460. 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 partnership461" 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 459 BEGUS (Cristian), « Commento / Note – Decretum, 48563/2013 CA. Monitor ecclesiasticus, CXXXI (2016), p. 27-36. 460 Prot 23737/92 CA, et note de Mgr Joseph PUNDERSON, Ministerium iustitiae, op. cit. p. 383387. 461 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. 145 sententiae462, 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 reason463. 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 state464. 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 293465. To undertand its importance, here are some statistics of the competent dicasteries466: • In 2015, the Congregation for Clergy registered 771 applications for exemptions from obligations arising from the priestly ordination, distributed as follows: Diocesan Religious Total 400 (52 %) 264 (34 %) 664 (86 %) Priests 76 (10 %) 31 (4 %) 107 (14 %) Deacons 476 (62 %) 295 (38 %) 771 (100 %) Total 462The 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. 463 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. 464 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. 465 C. 293 : A cleric who loses the clerical state cannot be enrolled among clerics again except through a rescript of the Apostolic See. 466 Attivita della santa sede 2015, Libreria editrice vaticana, p. 725. 146 • • • In 2010, the Congregation for Divine Worship and the Discipline of the Sacraments467, 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 priests468 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 Mendonça469 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 Canosa470 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. 467 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. 468 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_Arrieta20101202_en.html 469 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. 470 CANOSA (Javier), « Giustizia amministrativa eclésiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582. 147 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 2006471, 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 victims472. 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 471Tribunal 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 ; 472 http://luttercontrelapedophilie.catholique.fr/ 148 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%473. For the crimes of paedophilia and for the other more serious crimes, article 52 of Pastor Bonus and article 8 of the substantive norms474 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. 473 FULUP (Tadig), Tout est bien, Nantes 2014, ed. Les sentiers du livre, p. 157-158. 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 474 149 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 himself475. 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 faithful476. 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 cases477. 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. 475 Ibidem. 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 477 Congregation for Divine Worship and the Discipline of the Sacraments, circular letter of 6 June 1977, Origins 27, (1997-1998), 169-172. 476 150 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"478. Under the pretext of protecting the victims, and secondarily to protect the finances of the Church479, 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 them480. 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 Faith481, 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 celibacy482. He then filed an recourse to the Prefect of the Supreme Tribunal of the Apostolic Signatura, protesting that he had not been 478 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. 479 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/EtatsUnis-un-nouveau-diocese-en-faillite-a-cause-des-abus-sexuels-2015-12-09-1390748. 480 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. 481 CDC Prot 458/03-30624. 482 CDC Prot No 458/2003. 151 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 1404483: "This is not our competence!” The next day, he left the diocese484, 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 Tadig485 Fulup: Each Friday morning, the CDF had the Pope sign a series of decrees reducing priests to the lay state486. 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. 483 Can. 1404 — The First See is judged by no one. FULUP (Tadig), Tout est bien, Nantes 2014, ed. Les sentiers du livre, p. 7, 164-167 ; 485 In Breton, “Tadig” means Dad. 486 FULUP (Tadig), Tout est bien, Nantes 2014, ed. Les sentiers du livre, p. 166. 484 152 • 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 contentiousadministrative 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. 153 • 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)487, 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!” 487 www.aprc.asso.fr ; email to Canonists without Borders in January 2017. 154 Chapter 6: Justice for Religious 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 Asia488. And here is their distribution in France: • 23,527 religious of apostolic life489, distributed among 315 institutes, including 2,413 foreign religious in France and 1,463 French nuns abroad; • 5,741 religious divided among 86 institutes and monasteries, including 1,081 monks in 59 monasteries; • 3,131 nuns divided into 228 monasteries490. 488Cf. www.viereligieuse.fr/La-vie-religieuse-en-chiffres-dans-le-monde As opposed to religious in contemplative life, who are called nuns. 490 These include the instructions below: • On 15 August 1969, the statement Venite Seorsum on contemplative life and enclosure of nuns of the Congregation for Religious and Secular Institutes, • On 2 February 1990, the statement Potissimum Institutioni, of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, • On 2 February 1994, the statement "Congregavit nos in unum Christi amor" (Fraternal Life in Community), • On 25 March 1996, the post-synodal Apostolic Exhortation “Vita Consacrata," • On 13 May 1999, the statement on contemplative life and the enclosure of nuns Verbi Sponsa of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, • On 29 June 2016, the Apostolic Constitution Vultum Dei Quaerere (Search for the Face of God) • On 11 May 2008, the statement Faciem Tuam, Dominates, Requiram (the service of authority and obedience) 489 155 1. The law and Its Application The law pertaining to consecrated persons is strongly marked by the evangelical counsel of obedience. 1.1. Law and Obedience After the decree of the Second Vatican Council Perfectae Caritatis, on the renovation and adaptation of the religious life, the magisterium devoted their five great specific texts491, 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 religious492. The Code of Canon Law devoted to religious a third part of its Book II, with 158 canons concerning institutes of consecrated life (c. 573 to 730) and 19 canons relating to societies of apostolic life (c. 731 to 749). Authors such as Jean Beyer have published several books of commentary on these canons, without however dealing with the applicable jurisprudence from the 177 corresponding canons. The rights and obligations of religious actually result from the combination of five different rights, and several courts whose respective competences are specified to the Canon 1427: 1. The rights and obligations of the Catholic faithful; 2. Depending on their state, the rights and obligations of the laity or clerics; 3. The rights and obligations of the members of the institutes of consecrated life and societies of apostolic life, following their state; 4. The particular law of the diocese on which they depend, or of the Roman Congregation to which they are attached; 5. The rights and obligations contained in their statutes, and the internal regulations specific to their own institutes, societies or congregations. Compared to the simple faithful, religious who have taken the vow of obedience are subject to additional deprivation of freedom, like the employees of a business. Here is an example: Upon his return from Sweden, Pope Francis responded to journalists about the charismatic renewal. He remembered his own reluctance 492 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) 156 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."493. 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 McDonough494 made a synthesis of their rights, such as provided for by the Code of Canon Law: The Code of Canon Law directly or indirectly expresses very few rights for members of religious institutes; on the other hand, many rights their are limited as a consequence of their religious profession. As well, the only three rights clearly identified for the religious seem to be: • the right not to reveal their conscience to their higher495; • the right to live the religious life496 ; • The right to means of subsistence to accomplish their vocation497. 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 life498: 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 493 Zenit, 1 November 2016. DONOUGH (Elizabeth MC), « The protection of rights in Religious institutes », The Jurist, (1986) 164-204. 495 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. 496 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. 497 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. 498 PAUL VI, Evangelica testificato, AAS, LXIII (1971), p. 512-513, n° 28: conscience and obedience. 494 157 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 617499 et 618500. The question nevertheless arises of what happens when the right is not respected by the religious or by his superior. 1.2. The Protection of Rights and Obligations In her doctoral thesis, Scholastica Empela Ankonelle501 referred to situations where a religious community becomes a place suffocating, of suffering and despair: 499 Can. 617 — Superiors are to fulfill their function and exercise their power according to the norm of universal and proper law. 500 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. 501 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. 158 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 victims502. More generally, Josu Mirena Alday503 refers to six different ways of living one’s membership in a religious institute marked by problems of authority and of fraternal life: 1. Renewed membership, from the vocation; 2. Fidelity and silence, trusting in superiors as they are; 3. Criticism and tension, with a firm sense of belonging and criticism; 4. Affliction and nostalgia, with a fatalistic attitude; 5. Escape, with a progressive abandonment of the practices of the institute; 6. Non-existence, with a totally distended connection. Also here, she does not mention explicitly making recourse to the justice of the Church in the history of the Sisters of Saint Therese of the Child Jesus in Lisala (DRC), to strengthen their identity as consecrated persons, do justice and bring peace. Still, there are many cases of religious who, rightly or wrongly, feel harassed in their own religious community, and they look to their superiors or to a canonist to find support in order to objectify their situation. Here is first of all an 502 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. 503 ALDAY (Josu Mirena) « Il senso di appartenensa al proprio istituto », in Vitcons 37 (2002) 166-179. 159 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 obey504. 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 harassment505, 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 Rome506. 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 Belgium507. 504 POLITI (Marco), Francis Among Wolves, French version, François parmi les loups, ed Philippe Rey, Paris 2015, p. 141-142/284. 505 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. 506 POLITI (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 122/284. 507 POLITI (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 117/284. 160 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 book508. 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. 508 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) 161 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…509 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 since510. 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. 509 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. 510 Information given to Canonists without borders in November 2017. 162 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 Avref511, an association that assists victims of the deviations of religious movements in Europe and their families, plays an important role in dialogue and discernment, in particular by allowing victims to take a step backward relative to what they live512; • The ICSA, the International Cultic Studies Association513, which is the international partner of the AVREF; • The French Diocesan Service "Pastoral,” new beliefs and sectarian deviations514 was created in connection with the cell for sectarian deviations in the Catholic communities of the Conference of the Bishops of France515. The following two act in favor of the religious institutes, in seeking to protect them legally against actions taken against them by the State or by their own members: • The CORREF, Conference of Religious of France516, brings together major superiors and explicitly provides "assistance and support to institutes" if they cannot deal with their members. • At the international level, the International Council of Canonists517, founded on 9 May 2016 by the International Union of Superiors General 511 https://www.avref.fr/ consulted on 14 December 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: 1. You who made a vow of chastity: You have known the isolation, the emotional rupture with your loved ones; 2. You who made a vow of poverty: You have known the extortion, abandonment, intellectual and spiritual misery; 3. You who made a vow of obedience: You have known submission, harassment, abuse of power, In that case, react. Nothing is lost. • If you are still there, leave without a look back, rediscover your freedom. • If you left, you have been tough, you can rebuild, you must do so. The AVREF welcomes you and helps you: identify yourself! Confidential support provided by families and former members of religious communities. www.icsahome.com . 513 www.icsahome.com 514 http://gamaliel21suite.pagesperso-orange.fr 515 www.eglise.catholique.fr/conference-des-eveques-de-france/cef/autres-services-et-instances/418017-derives-sectaires-dans-des-communautes-catholiques/ 516 www.viereligieuse.fr 517 www.crc-canada.org/fr/conseil-international-canonistes-IUSG 512 163 (IUGS) provides legal consultation to its members. Unfortunately, this organization does not actually intend to provide legal assistance to religious, but only to the general superior. There is finally a body that acts in different ways, respecting the right of defense of the two parties, namely the "Welcome Mediation Service for Religious Life and Community" (SAM), created under the authority of the Coordinating Committee of the Episcopal Commission of Consecrated Life and Conferences of Major Superiors within the Conference of the Bishops of France. Its aim is the following: …Welcome and listen to persons (parents, members of communities old or new, former members) aggrieved by the actions of a Catholic community and/or denouncing its malfunctions (abuse of authority, mismanagement of property, manipulation...) 518 Its origin and its operation are specified in a report of 2006519. With regard to the results, Christelle Javary520 specifies: The SAM supported a low number of mediations, but plays an essential role in listening to and pacifying people who make contact with [it]. The most important result is without doubt that of having benefited from its experience to inspire recommendations which aim to prevent future conflicts. It is also likely that the discretion (that can be judged excessive) of the SAM limits the number of appeals which are sent to it. [...] The SAM is an innovation of the Church of France, 518 Note published by the Diocese of Evry: http://evry.catholique.fr/Service-Accueil-Mediation-pour-la and consulted on 3 March 2015; 519Today it consists of 9 members (2 laity, father and mother of the family, a secular priest, 2 male religious, 4 women religious) appointed by the Permanent Council of the episcopate by a mandate of three years. They are bound by the obligation of professional secrecy. […] The people believed to be, for themselves or for a relative, in a situation falling within the SAM can address a request for intervention to the […] Deputy Secretary General of the EFC […which…] will entrust the case to one, and often two, members of the SAM. It falls to the members of the SAM to which the case has been entrusted: • to assess the situation and hear all the persons involved in the conflict (complainant, superiors, those responsible within the community), • to open, when this is possible by way of mediation, paths of understanding and reconciliation, • to inform, as soon as they begin, the Bishop concerned and to transmit to him, at the end of the process, a report on what could be done through mediation, or to tell him that it could not succeed. From the outset, the Bishops have held that are have heard the people who are concerned about what they perceive, from the inside or the outside, as deviant behavior in a particular community. They always ask to serve the dynamism of the Gospel, if necessary to report and correct what constitutes an obstacle. 520 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. 164 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 Borders521" 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. 521 Cf. presentation in chapter 12. 165 Sometimes, instead, the intervention is beneficial: Having been expelled from his congregation, whose leaders behaved in a totalitarian manner, and no longer have any means of subsistence, the state of health of a religious was deeply affected when he appealed to Canonists without Borders. He was encouraged to maintain his confidence in God, avoiding the two pitfalls of shame and hatred, and to defend his rights by contacting the SAM. The latter then conducted a mediation, which allowed him little by little to obtain a indult of exclaustration under satisfactory conditions. The second level of juridic recourse is that of classic hierarchical administrative recourse, as per canons 1732ff. From his investigation in the American dioceses, James Provost found that the number of hierarchical recourses by religious is low, since he only counted two recourses in 141 dioceses over 16 years. Here are two hypotheses to explain this surprisingly low result: • Either the protection of rights inside religious communities is effective enough to ensure that the religious do not need to go to outsiders; or • The difficulty for the consecrated to make hierarchical recourse is such that they prefer to leave their community of their own volition522, or are excluded by it, before appealing to ecclesiastical justice. Here is a prime example of unsuccessful recourse: Having received a notification of non-acceptance of her religious profession, an African religious who had spent ten years in a congregation made hierarchical recourse to the Roman Congregation responsible for religious. She received a negative response by e-mail stating that the refusal of renewal of vows is not tantamount to removal, and obliged her to obey. The sister then requested a new review, citing the paragraphs of the Congregation’s own statutes, which had not been respected in the process. For unknown reasons, the Congregation did not address the irregularity, although the religious, who waived contentious-administrative recourse, must start her life over from scratch in the secular world, without a family and without support other than that of Canonists without Borders, which permitted her to buy a embroidery-machine, to allow her to earn a living523. And here is an example of the successful use: 522 523 According to ASS (2915), p. 745, 2073 indults of departure were granted in 2015. Information given to Canonists without borders in 2017. 166 Having received two warnings of expulsion from his Superior General, a religious contacted the "Cell for the sectarian deviations in Catholic communities524" 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 Dei525, and the Commission finally responded to the religious who had written several emails to them without response. A compromise solution was found and implemented. The third level is that of contentious-administrative recourse, whose number is relatively important. Indeed, our database shows that: • Religious initiated 162 recourses, representing 22% of 742 remedies for which the petitioner is identified526; • The decrees of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life are the subject of 270 recourses, representing 31% of the 857 remedies for which the Dicastery is identified. In fact, recourses cover two major areas which will structure our chapter. The first concerns justice for consecrated and other physical persons, while the second concerns justice for juridic persons which are the institutes of consecrated life and societies of apostolic life. This chapter will attempt to clarify the situation regarding contentious-administrative jurisprudence relative to consecrated persons. We will build in particular on the analysis carried out in 1986 by Francesco of Ostilio527, on 90 contentious-administrative recourses presented by religious or by their institutes. 524 www.eglise.catholique.fr/structure/cellule-pour-les-derives-sectaires-dans-des-communautes-catholiques/ 525 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". 526 Religious priests may be counted either among the clerics either among the religious. 527 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. 167 2. Justice for Religious The 1978 activity report of the Holy See indicated that, among the three types of administrative acts which are most often the subject of administrative recourse with the Supreme Tribunal, two concerned religious, namely cases of exclaustration and cases of resignation528. More specifically, F. Ostilio529 classes the recourses according to these main headings: 1) Conflicts with superiors and chapters (cc. 596, 617); 2) Admission (cc. 597, 641-658, 720-723, 735), formation (cc. 659-661, 724, 735), geographic exclusion (c. 679), temporary exclaustration (c. 686, 745) and the final departure of a member (cc. 686-704, 729, 742-743); 3) Election and removal of superiors (cc. 623ff.) or offices (c. 682); 4) Pastoral or apostolic visits (c. 628). From the work of Ostilio, Javier Canosa530 sought the "major judgments" favorable to religious, which marked the first 40 years of administrative case law. He noted: 1) The recognition of the right of defense, acknowledged by the second section as early as 1973, based on natural law and not on a particular canon (Prot 2973/72 CA). 2) The reminder of the principles (charity) and the function of the law (to cure and not to punish), taking into account the situation of persons, in this case a sister who had lived and worked for many years in her congregation (Prot 10460/78 CA) 531. 3) The possibility offered by the Secretariat of State for a Tribunal to judge a case on its merits, which has provided the basis for repair of damages in the case of a professor fired unjustly (Prot 10977/76 CA)532. 4) The refusal to accept an order of expulsion on the basis of moral certainty, and not of objective facts to substantiate this certainty (Prot 17156/85 CA). 528 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. 530 CANOSA (Javier), « Giustizia amministrativa eclésiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582. 531 Aegrotans non dimittimur sed curatur […] id exigit iustitia si soror N plures annos in commodum Instituti lavoravit: id exigit maxime caritas. 532 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. 529 168 Without being confrontational, let us start with departures from institutes, before addressing other administrative acts. 2.1. Departure from Institutes The activity report of the Congregation for Religious533 lists for 2015: • 369 requests for exclaustrations granted; • 8 exclaustrations imposed; • 2,073 indults of departure granted; • 213 decrees of dismissal confirmed. Here is an attempt at explanation: One of the realities that quickly strikes any new employee of the Dicastery [the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life] is the continued growth of the number of departures from institutes of consecrated life and from religious institutes in particular. Our services address up to 3,000 applications per year for departure from the institute! […] According to statistics, the grounds relied on in support of the applications for departure are predominantly related to a crisis of faith and then to difficulties in fraternal life and finally, to a lesser extent, an emotional deficit. […] Nevertheless, although the departures are numerous, we must keep in mind that a tree that falls makes more noise than a forest that grows. If there are infidelities, let us remember that there is especially a lot of holiness in the religious life.534 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 indicated535 : • Departure of a novice (c. 653 §1); • Exclaustration imposed by the Holy See (c. 686 §3); • Departure imposed an a member with temporary vows (c. 689); • Voluntary departure from an institute (c. 691-3); • Ipso facto dismissal of a member (c. 694-700); • Obligatory dismissal (c. 695); 533 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. 535 SUGAWARA (Prof. Yuji), « Separazione imposta ai membri dell’istituto religioso », Periodica 106 (2017), p. 177-189. 534 169 • • Facultative ordinary dismissal, which in fact constitutes expulsion at the discretion of the superior (c. 696-700); Immediate expulsion as a result of a very serious fault (c. 703). Without examining every conceivable case, let us look at a few cases among those which give rise to litigation the most frequently. 2.1.1. Voluntary Departure from an Institute The grounds for departure from institutes are numerous536. Some religious leave their institute following the non-renewal of their provisional vows, either voluntarily537 or after a decision by superiors. Others seek to take a step back and ask to be absent from their institute, which requires: • a leave of absence for a maximum of one year under canon 665538; • an indult of exclaustration for a maximum of three years under canon 686 §1; • authorization for transfer to another institute under canons 684ff., or even a indult of exclaustration under canon 691539. 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 apostolate540. 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 accepted541, rejected, not admitted to discussion or resolved by transaction, depending on the case. 2.1.2. The Departure of a Novice or a Religious in Temporary Vows Canon 653 §1 provides that: Can. 653 §1. A novice can freely leave an institute; moreover, the competent authority of the institute can dismiss a novice. In the event of separation, it is not legally necessary to indicate the causes of departure or of the reference of a novice, unless the particular statutes of the institute require it. Reciprocal charity may, however, require it to be done. 536 Cf. HERVADA (Javier), Code de droit canonique bilingue et annoté, op. cit. p.886. 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. 538 See also c. 740 for the members of a society of apostolic life. 539 Or c. 727-728 for the member of a society of apostolic life. 540 MORAL CARVAJAL (Sr. Delfina, O.P.) “Exclaustrazione imposta di un religioso. Applicazione pratica,” Periodica 106 (2017) 190-216. 541 Prot 3671/72 CA ; Prot 7607/76 CA. 537In 170 If it is a case not of a novice, but of a religiou s in temporary vows, who may have given up to nine years of his life to an institute, canon 689 requires a decision by the major superior, a just cause and a hearing by the council, but not necessarily the agreement of the latter, knowing that the statutes of institutes can impose additional conditions. Can. 689 §1. If there are just causes, the competent major superior, after having heard the council, can exclude a member from making a subsequent profession when the period of temporary profession has been completed. Subject of the own right to the Institute, canon 689 §2 and §3 specify under what conditions a disability may be a cause of separation. Additionally, charity demands that the novice or professed member be left without means, to return to his family or to survive for some period of time. 2.1.3. Imposed Exclaustrations Sometimes, a religious does not wish to be absent or depart the institute but it is his superiors who wish to separate from him. One of the solutions that will then be presented to superiors is to impose on a religious exclaustration, temporary or final, under canon 686 §3, for a grave cause such as, for example, the inability to live the common life, prolonged absence from the religious house, or repeated violation of the vows of obedience and poverty. c. 686 §3. At the petition of the supreme moderator with the consent of the council, exclaustration can be imposed by the Holy See on a member of an institute of pontifical right, or by a diocesan bishop on a member of an institute of diocesan right, for grave causes, with equity and charity observed Without entering in detail, let us remember that the religious concerned is then exempted from the obligations which are inconsistent with his new state, but he continues to depend on his superiors. Some then file recourses which are accepted542, rejected543, not admitted to discussion544, abandoned or settled by transaction545, depending on the case. Here is an example of case law: 542 Prot 10896/79 CA as indicated by F. d’Ostilio (Dizionario, op. cit., p. 1245) Or, more likely, Prot 10896/75 CA. 543 Prot 7084/75 CA 544 Prot 227/69 CA ; Prot 3356/72 CA ; Prot 10218/78 CA ; 16616/84 CA 545 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. 171 In the case Prot 18061/86 CA546, 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-Carvajal547 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. Sugawara548 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 necessary549. 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 Ruessmann550 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." 546 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. 548 SUGAWARA (Prof. Yuji), op. cit. 549 Sister Dominique specified that unfortunately, exclaustrated religious are often left on their own by their congregations. 550 RUESSMANN (Madeleine), Exclaustrations, its nature and use according to the current law, Roma 1995, Editrice Pontifica Universita Gregoriana, 550 p. 547 172 2.1.3. Explulsions Sometimes, superiors want a member of their institute to depart, and they remove him in virtue of canons 696 to 701551, 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: a. automatic expulsion when the conditions of canon 694 are met; b. mandatory expulsion when certain offenses have been committed, following the procedure laid down in canon 695; c. expulsion for other causes that do not necessarily constitute an offense, as determined by canon 696; d. expulsion when there is an "urgent cases,” that is to say when there is a grave external scandal or very serious imminent harm for the Community, according to canon 703.4552. 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: 551 For example, the 1983 code had abolished the differences of law between religious and religious-scholars that prevailed between 1917 and 1983. 552 Cf. HERVADA (Javier), Code de droit canonique bilingue et annoté, op. cit. p. 621-622. 173 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 book553 by which he tries to reconcilie law and the local situation. Several dismissed religious told that they had been expelled for usually improper motives. 1) I have been dismissed without any reason 2) I am dismissed because I eat a lot 3) I am dismissed because I spoke to a brother at the shower 4) I am dismissed because of the clothe I received as gifts from friends 5) I am dismissed because the superior cannot stand me 6) I am accused of being visited by people who are not well known 7) I have been a victim of the hatred that the superior had against my tribe Observe that the disobedience is not always a reason for expulsion, because: A religious is required to obey his superior, but the latter does not have absolute power to order anyone to do anything554. 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 faithful555. Their interpretation is the subject of commentary 553 MBOMA (Georges usus) Le droit canon face aux défis des réalités africaines, Cas du renvoi d’un religieux. L’Harmattan, 2013, 96 p. 554 HUELS (John M.), « Unlawful Command by a Major Superior”, Roman Replies (1997), p. 53. 555 cf. Comm 9 [1977] 53-61). Cf. VC 43. 174 by canonists, among whom is Christian Begus, based on two cases of jurisprudence556, of which we will provide the conclusion: • The lack of absolute character of obedience includes the possibility for the religious to conduct an assessment of the legitimacy of the order received, formally or substantially. […] • In the case of disobedience by the religious, in addition to the criterion of putability, that includes an element of fault, it appears possible to identify another, considering the importance given to the causal link between the conduct of the religious, the facts and the disobedience, in the absence of evaluation of his own negligence; • The protection of the rights of defense has an absolute value, and it is the subject of particular attention in facultative dismissal, taking into consideration its multiple aspects, even if not explicit, which relate to the entire course of the procedure: the initial admonition, probationary time, and the possibility of presenting an adequate defense. Conversely, this protection does not necessarily include the presence of a canonically competent defender. The religious may designate one, but he cannot claim the title of an official defender557. 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 marriage558 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 1973559 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 Texts560 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 556 Prot. 30199/99 CA and Prot. 33358/02 CA BEGUS (Christian), Adnotationes in decreta, Apollinaris 2011 (44/2), p. 501, translated from Italian. 558 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. 559 Prot 150/70 CA, cited by LOBINA, ME (1973) 1-4, p. 313 560 On 2 January 1984, it was replaced with the Commission for the Interpretation of the Decrees of the Second Vatican Council. 557 175 See. The latter can then make hierarchical recourse to the Roman congregation, but not immediately to the Supreme Tribunal561. In practice, every year some expelled religious make hierarchical and contentious-administrative recourses. Depending on the case, these recourses are deemed inadmissible562, not admitted to discussion563, abandoned in the course of the procedure564, rejected565 or accepted566, which shows that justice plays its role. As an illustration, here is a prime example of an accepted recourse: In case Prot 31290567, 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 37163568, 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 18061569, 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 561AAS 78 (1986), p. 1323. Prot 8031/76 CA ; 9690/77 CA ; 10218/78 CA ; 14997/83 CA ; 15721/83 CA… 563 Prot 150/70 CA ; 2089/71 CA ; 2848/72 CA ; 8474/76 CA ; 9242/77 CA ; 12618/80 CA ; 13557/81 CA… 564 Prot. 9993/78 CA. 565 Prot 9498/77 CA ; 8984/77 CA 566 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. 567 Ministerium Justitiae, op. cit. p. 314. 568 The Jurist, 73 (2013):1, p. 222-227 569 Ministerium Justitiae, op. cit. p. 255-274. 562 176 documents previously forwarded provided clarification and could be considered as decrees within the meaning of canon 49. Expulsions have consequences for the people who leave their institutes, and their situation is sometimes the subject of a new litigation. 2.1.4. The Consequences of Expulsion One of the disputes which sometimes accompanies the expulsion of a religious concerns the social rights that he acquired while in the service of his congregation570. 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 Curia571 and canonists572. 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 courts573. 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 Boinot574 from nuanced judgments of the Court of Cassation, of which here are some examples: Regarding a religious who had worked as a nurse at the Little Sisters of the Assumption, the plenary assembly established on 8 January 1993 that Ms.… had exercised her activity only for the benefit of her congregation, a fact which excluded the existence of a labor contract. However, 570 “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. 572 DE PAOLIS (V.), La Vita consacrata nella chiesa, Venezia 2010, 590 p. 573 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. 574 BOINOT (Patrick), « Vœux religieux et relations de travail », » in Revue de Droit canonique, Strasbourg 2015, tome 65/1, p. 143-163. 571 177 Regarding two married members of a new community which does not have the status of a religious congregation, the Social Chamber of the Court of Cassation ruled on 29 October 2008 that "regardless of the spiritual nature of their commitment,” these two people "worked for the association in a relationship of subordination characterizing a labor contract." Finally, Regarding Ms…, bound by religious vows in the community of the Glorious Cross which she later left, the Social Chamber of the Court of Cassation ruled on 29 October 2008 that "the existence of a relationship of employed labor depends neither on the willingness expressed by the parties, nor on the name that they have given to their agreement, but on conditions of fact in which they engage in the activity of workers; the religious commitment of a person is likely to exclude the existence of a labor contract only for activities that he performs for the benefit of a legally established congregation or worship association.” In this case it recognized the existence of a labor contract with the consequences that follow. With respect to retirement benefits, Patrick Boinot stated that as of July 1, 2006, the social security fund (CAVIMAC) takes into account the years of Postulancy and Novitiate for the calculation of pensions, based on the case law of the Court of Cassation, which was then translated into the law No. 2011-1026 of social security funding for 2012 and article L. 382-29-1 of the Social Security Code. 2.2. Other Recourse for Consecrated Persons F. Ostillo indicated the existence of contentious-administrative recourse for religious on a variety of topics, such as: • Refusal of admission to the profession temporary or final; • Withdrawal of a position in the field of education (canon 192-5575); • Withdrawal of the faculty to hear confessions576; • Transfer to another house; • Deprivation of active and passive voice; • Expulsion from the diocese by decree of the bishop; • Refusal of the permission to dedicate themselves to study. 575 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. 576 The recourse Prot 1063/69 CA was denied, while recourse Prot. 2207/71 CA was abandoned by the petitioner. 178 3. Justice for Institutions of Consecrated Persons The 2001 Pontifical Directory states that there are 1,992 institutes of consecrated life and societies of apostolic life distributed as follows: Religious Institutes Secular Institutes Sociéties of Apostolic Life Total Men’s Institutes 193 16 35 244 Women’s Institutes 1641 95 12 1748 Total 1834 111 47 1992 Among them, the religious institutes are by far in the majority, and so we will address ourselves mainly to their situation, not without some digressions for the secular institutes and societies of apostolic life. The 2015 activity report of the Congregation states that there were 136 authorizations for erection of religious houses during the year577. Besides the recourses by religious and consecrated persons, there are also recourses on the part of the institutes of consecrated life and societies of apostolic life or their superior. There are three types of difficulties: • Suppression of religious houses; • Claims of property rights; • Interference in the management of the institutes. 3.1. Creation and Suppression The law relating to religious houses is defined by the following canons: • The approval (c. 576, 579, 587, 595, 605); reorganization (c. 580); division (c. 581); merger (c. 582); modification (c. 583, 595); suppression (c. 584, 585); exemption (c. 591), erection of houses (cc. 609ff.; 733); • The management of the materiel assets of institutes (cc. 634-640; cc. 718, 741) and their members (cc. 668-670). This right is amended regularly, as shown for example by the interpretation of the Pontifical Council for Legislative Texts, which ruled on 14 July 2016 that the Major Superiors of clerical institutes of pontifical right do not have competence to erect pious foundations within the meaning of canon 312 §2578. 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 577 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. 578 179 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 monasteries579 or during division (Prot 39257/06 CA), or unions (Prot 40608/07 CA) of religious institutes. Here, among others, is an example of recourse: After preliminary agreement by the Congregation for Religious and Secular Institutes, a diocesan bishop suppressed a religious house by a decree on 29 July 1970, particularly because of the advanced age of the religious. After deliberation in their chapter, the religious made a hierarchical recourse, and then a contentious-administrative recourse with the second section, and the Pope himself mandated a Pontifical Commission to examine the case on the merits and not only on the legality. On 24 February 1973, the College of the Tribunal nullified the decision and imposed the restitution of the monastery on the basis of cc. 493 and 498 of the CIC/17, that the Bishop was not empowered to take such a decision, as it was within the competence of Rome. 3.2. Property Rights The issue of property rights is sometimes difficult in the case of the reorganization or suppression of institutes, sometimes resulting in recourse after the Congregation or the Supreme Tribunal recognizes the right (e.g.: Prot 384/68 CA). Property are also occasions for disputes between the diocesan bishop or a parish, and a religious institute, as it seen in several cases in the 1987580 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 579 580 Prot 3672/72 CA ; 27406/96 CA ; 33121/02 CA ; 37162/05 CA ASS (1987), p. 1292 and 1293. 180 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 form581. There are other cases where conflicts of ownership are ended by a transaction between the parties during the time of instruction of a contentious-administrative recourse (ex Prot. 384/68 CA); here, finally, is a dispute between a religious institute and a member of the Catholic faithful, solved thanks to ecclesiastical justice: In 1950, an individual had loaned a sum of money to a religious congregation in France. The superior repaid the first installments, but his successor did not continue. The individual turned to the diocesan Tribunal, which ruled in his favor. The religious province filed an appeal to the Rota, which confirmed the decision of the diocesan Tribunal, and the Province was given a mandate to calculate the interest on the loan amounts. Challenging this decision, the superior finally addressed the Apostolic Signatura, which did not admit his appeal (Prot No. 923/70 C.G.). Without going into detail, we could still cite: • A query to the Congregation for the Institutes of Consecrated Life and Societies of Apostolic Life for a debt ceiling582; • Other types of appeal concerning the rights of ownership of the institutes, of goods derived from pious wills (ex: Prot 11876/79 CA). 3.3. The Management of Institutes Frederico d’Ostilio identified five contentious-administrative recourses against a decision of the Congregation for Religious and Secular Institutes, relating to the internal management of institutes. The decisions of the Tribunal are sometimes in favor of the petitioners: The general superior of a Secular Institute in Lyon was expelled before the end of her mandate by a decision of the Congregation for Religious and Secular Institutes, leading to early elections. The old and the new superior general went to the Supreme Tribunal, which nullified the decision of the Dicastery by sentence of 26 June 1976. (Prot 6508/75 CA). And sometimes they are in favor of the Dicastery: 581 582 Prot 324/69 CA cited by D’Ostilio, op. cit. p. 1239. Roman Replies (2012) 21 181 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 583." 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 Association584. 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. 583 Congregation for the Doctrine of the Faith, Doctrinal Assesment of the Leadership Conference of Women Religious, 18/04/2012. 584 POLITI (Marco), François parmi les loups, version française, ed Philippe Rey, Paris 2015, p. 121/284. 182 Chapter 7: Administrative Justice in the Face of Charisms This chapter differs from the preceding ones, insofar as it does not concentrate so much on the jurisprudence of hierarchical or contentious-administrative recourse, but rather on administrative practices of clerics in the face of charisms. In the first part, the analysis focuses on the phenomenon of private revelations, with the applicable law, the tests and sanctions imposed on seers and their friends, and finally on contentious-administrative recourse in both ecclesiastical and civil court systems585. The second part focuses on justice in the face of the new religious movements and so-called sects, with the applicable law, the sanctions imposed and possible recourses. 1. Private Revelations At the time of Jesus, His uncle Zechariah, His mother Mary and His foster father Joseph received visits from a angel, while His apostles received the visit of the Risen Jesus586. Subsequently, a large number of saints have received private revelations587. In effect, the [...] apparitions and supernatural signs scan the course of history, they enter into the real life of human vicissitudes and accompany the path of the world, surprising believers and non-believers.588 585 The competent Congregation in matters of private revelations is the Congregation for the Doctrine of the Faith. However, the database of publications mentioned in Chapter 3, reports only four recourses relating to decrees emanating from this Congregation, of about 2,000 publications relating to contentious recourses. In addition, none of the cases identified makes explicit reference to a private revelation. Certainly, it is possible that jurisprudence exists for the transfer of parish priests or the suppression of an association, which constitutes one of the disciplinary measures imposed by the bishop in cases of presumed apparitions, but in this case, jurisprudence is very abundant and reference to the private revelation is not indicated in the subject of the recourse. 586 Cf. RATZINGER, (Cardinal Joseph), theological places of private revelations, Comment on the Third Secret of Fatima, 13 May 2000. He distinguished between the time of the revelation, termed “public,” in opposition to "private revelations," knowing that between these two realities, there is a difference not only in degree but in nature. 587 We think, for example, of Saint Augustine, Saint Martin, Saint Joan of Arc, Saint Gertrude, Saint Francis of Assisi, St Francis de Sales, Saint Jeanne de Chantal, St Teresa of Avila, Saint Catherine Laboré, Saint John of the Cross, Saint Bernadette of Lourdes and the children of Fatima, Sister Faustina, Padre Pio… 588 BERTONE, (card. Tarcisio sdb), Archbishop Emeritus of Vercelli, Secretary of the Congregation for the Doctrine of the Faith, "The message of Fatima” Fatima 13 May 2000 183 Even today, there are more private revelations that we think, but most of them remain secret. This is typically the case when they are directed to an individual to encourage or assist him to accomplish his vocation. Sometimes the confidence of a friend or the reading of a book allows us to become aware of them as, for example, in the case of H.E. Jean-Pierre Kutwa, Cardinal Archbishop of Abidjan: You know, Francesco, (as he likes to call the author) during this period in the hospital, I was visited by the One that I had chosen to serve: Jesus Christ. One day, I spent several minutes in atrocious pain, I suffered terribly and suddenly, everything stopped and I fell asleep. It was at this time that I saw Jesus. He was very bright and in a spontaneous gesture, I was immediately lying at His Feet and I clutched them in my arms. Jesus asked me: "Why do you fear? Do not be afraid. Your mission is not complete. Go back."589 This type of private revelation affects not only the baptized, but also atheists and people of other religions: The 1929 law of the Soviet Union, today repealed, prohibited religious activities and punished the recalcitrant in order to encourage the dissemination of atheism. In this context, many witnesses testify to the conversion of atheists by private revelations or dreams. Closer to us in Algeria, the order of 28 February 2006 regarding Muslim worship severely punishes "anyone who incites, forces or uses means of seduction intending to convert a Muslim to another religion" or which "shakes the faith of Muslims," and so Catholics are discreet. In contrast, the Holy Spirit is at work and the Archbishop of Algiers testified that many Muslims have come knocking at the door of churches because they have had a dream that speaks to them of Jesus Christ as the Savior. We define these revelations as “private revelations of a personal nature”. Conversely, other private revelations contain messages that the recipient is asked to make known. These revelations, that we call "private for a public purpose," pose a cultural problem in the Western world, marked by materialism and rejecting the very idea of God. They also pose a serious problem of discernment for the Church as to the nature and content of the alleged apparitions, and as to the events which accompany them. This is exactly what the Congregation for the Doctrine of the Faith says in its letter on the hierarchy and the charisms: 589 LEBRY (Léon Francis), Jean-Pierre Kutwa, miraculé et cardinal, Abidjan NEI-CEDA, 2015, 262 p. 184 Among the charismatic gifts, freely distributed by the Holy Spirit, many are received and lived out by persons within the Christian community who have no need of particular regulations. When, however, a gift presents itself as a “founding” or “originating charism”, this requires a specific recognition so that the richness it contains may be adequately articulated within the ecclesial communion and faithfully transmitted over time. Here emerges the decisive task of discernment that appertains to the ecclesial authorities. Recognizing the authenticity of a charism is not always an easy task, it is, nonetheless, a dutiful service that pastors are required to fulfill590. The U.S. website « Miracle hunter591 » lists nearly 700 private revelations592, with a strong acceleration over time: there is on average one per year in the years 1900 to 1925, then about 35 on average per year in the years 1970 to 2000593, with a total of 410 revelations in the period 1967 to 2016. Abbot Laurentin594 explains this sudden increase, not by a greater frequency of private revelations, but by the evolution of the canon law in force: This is due to the abolition of canon 1399, §5 of the old Code of Canon Law which prohibited "books and pamphlets that talk about new apparitions, revelations, visions, prophecies and miracles, or launch new devotions, even under the pretext that they are private" (and canon 2318, which excommunicated offenders)595. 590 Congregation for the Doctrine of the Faith, letter of 15 May 2016, on the occasion of the Feast of Pentecost 2016. 591 The www.miraclehunter.com website was developed by "Miracle Hunter" Michael O'Neill, a graduate of Stanford University, and a member of the Mariological Society of America. Cardinal Seán O'Malley, Archbishop of Boston, MA. commented, "Thank you for sending me your site. It is excellent." 592 He identified more than 1 000 miracles, or at least alleged miracles, consisting of miraculous images, stigmata, incorrupt dead bodies, Eucharistic miracles and apparitions. 593 This increase may reflect an increase in their real number, but it may also be the result of a better knowledge of apparitions due to greater media coverage. 594 Mons. René Laurentin, prelate of His Holiness, is dead on Sunday 10 Septembre 2017, when getting quite 100 years old. 595 LAURENTIN (Père René) « Multiplication des apparitions de la Vierge aujourd’hui » (Fayard 1995). The abrogation took place by Blessed Pope Paul VI, on 14 Octobre 1966 (Congregation for the Doctrine of the Faith, Acta Apostolicae Sedis, 29 Decembre 1966, p. 1186) 185 500 400 300 200 100 0 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 Number of Apparitions per decade identified by Miracle Hunters Without counting that of Lipa, which we will discuss below, the Church has recognized 16 Marian apparitions, including five during the period of our study596. The popular piety which accompanies them is one of the expressions of the sensus fidei, but it goes against the current of rational society today: Apparitions, honored by popular piety in our sanctuaries, are disregarded in the theological community, including laypersons.597 This hypothesis may in particular be illustrated by the remarks of the Bishop of Quimper and Léon about Kérizinen: The Christian faith is not of the order of the senses: it is the home of Jesus Christ, of His Gospel, of His Church. […] Can those who are led astray by these alleged revelations open their eyes to the sole truth of Jesus Christ, which does not exclude the Virgin but includes her in her place, instead of locking themselves into a ghetto without opening or without end! May these persons meditate on these strong words of Saint John of the Cross, an authentic mystic and also a Doctor of the Church: "In giving us His Son as He has done, He who is His last and final Word, God has spoken to everyone and only once, and has nothing more to say.”598 596 Guadalupe (Mexique, 1531), Aparecida (Brésil, 1717), Rome (à Alphonse Ratisbonne en 1842), La Salette (France, 1846), Lourdes (France, 1858), Pontmain (France, 1871), Giertzwald (Pologne, 1877), Fatima (Portugal, 1917), Beauraing (Belgique, 1932), Banneux (Belgique, 1933), Amsterdam (Pays-Bas, 1945), Betania (Venezuela, 1976), Akita (Japon, 1973), Kibeho (Rwanda, 1981), Le Laus (France, 1664) et Champion (États-Unis, 1859). 597 LAURENTIN, (Mgr. René), Mémoires. Chemin vers la lumière, Paris, 2005, Fayard, p. 332/624. 598 BARBU, (Mgr. Francis), « Que penser de Kerizinen ? Une réponse de Rome, la position de l’Evêque diocésain », Quimper, June-July 1975, drawn from the archives of the Association of Friends of Kérizinen. 186 Certainly, revelation was closed with the death of the last apostle, as Saint John of the Cross wrote when commenting on Heb 1, 1-2, but the catechism adds: Yet even if Revelation is already complete, it has not been made completely explicit; it remains for Christian faith gradually to grasp its full significance over the course of the centuries. Throughout the ages, there have been so-called "private" revelations, some of which have been recognized by the authority of the Church.... It is not their role to... complete Christ's definitive Revelation, but to help live more fully by it in a certain period of history599. Since there is tension between popular faith and the rationality of some theologians600, let us now examine the applicable canon law. 1.1. The Law on Private Revelations When a prophet speaks in the name of God, or when a person makes known a private revelation of a public nature, the result is invariably tension between him and the authority of the Church, because both of them think that they are acting and speaking in the name of God. This situation poses a major problem of discernment, for the Local Ordinary confronted with the words of Saint Paul: Do not quench the Spirit. Do not despise prophetic utterances. Test everything; retain what is good. (1 Thessalonians 5, 19-21) But also of Saint Matthew: You will hear of wars and reports of wars; see that you are not alarmed, for these things must happen, but it will not yet be the end.[…]Many false prophets will arise and deceive many. (Matthew 24, 6 and 11) Three regimes of positive law have governed the method of discernment during the period under study: • On December 29, 1966, shortly before the beginning of our study period, the Congregation for the Doctrine of the Faith published a decree approved by Pope Paul VI on 14 October 1966601, repealing canons 1399 and 2318602 of the 1917 Code on the imprimatur and religious books, and 599 Catechism of the Catholic Church, No. 66 and 67. CANTALAMESSA (Père Raniero) www.totus-tuus.fr/article-2220137.html 601 AAS 58/16. 602 Can. 2318 : § 1 In the excommunications especially reserved to the Apostolic See, after the publication of the book, the publishers of books of apostates, of heretics and schismatics, which support apostasy, heresy or schism. The same punishment for those who defend these books or other works specifically condemned by apostolic letters, or knowingly the read or retain them 600 187 • • relaxing ecclesiastical discipline relating to apparitions, recognized or not603. By contrast, there did not exist at that time specific procedural standards on the manner of handling them, outside of the general principles of law; In November 1974, the annual plenary session of the Congregation for the Doctrine of the Faith was working on private apparitions, and its conclusions were sent to the bishops, but not published604; On 14 December 2011, the Congregation for the Doctrine of the Faith published the criteria for discernment, to enable those concerned to know what the applicable law is605. In the preface to this publication, the Cardinal Prefect indicated: It is my firm hope that the official publication of the Norms regarding the manner of proceeding in the discernment of presumed apparitions without the required permission. § 2 The authors and publishers who print, without the required permission, books of Sacred Scripture, or notes and comments on these books, incur by that fact an excommunication which is not reserved. 603 OTTAVIANI (Cardinal). The excerpt of the decree of the Congregation, translated by the author from the English version downloaded on 20 May 2016 from www.lovingmother.org/misc/canonsofthechurcheng.htm Canon 1399 : forbade, by right of publication, certain books such as those that deal with revelations, visions, prophecies and miracles. This canon was repealed on March 29, 1967. This means that as far as these publications are concerned, prohibition is lifted as to their being bound by ecclesiastical law and henceforth, Catholics are permitted, without need of imprimatur, nihil obstat, or any other permission, to publish accounts of revelations, visions, prophecies and miracles. Of course, these publications must not put in danger the faith or morals. This is the general rule, which every Catholic must follow in all his actions, even journalists, especially journalists. There is henceforth no longer any prohibition concerning the narrative of seers, be they recognized or not by ecclesiastical authority. All the more reason is it permitted for Catholics to frequent places of apparitions, even those not recognized by Ordinaries of their dioceses or by the holy Father, granted that the Catholic visitors who frequent these places must respect the faith and morals. However, they are not subject to any ecclesiastical discipline, not even for their public prayers. Permission is required only for the celebration of Holy Mass or any other religious service. Canon 2318 : carried penalties against those who violated the laws of censure and prohibition. This canon has been abrogated [revoked] since 1966. Non can incur ecclesiastical censure for frequenting places of apparitions, even those not recognized by the Ordinaries of their dioceses or by the Holy Father. Also, “those who would have incurred the censured treatment in Canon 2318 will be likewise absolved by the very facts of the abrogation [revocation] of this Canon.” 604 www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_ doc_19780225 _norme-apparizioni_en.html 605The criteria have been kept secret for 37 years, and then made public after informal versions circulated everywhere in the world. In fact, the publication of the procedural standards is not only useful to pastors, who were already informed, but also and especially to the faithful who may inform themselves of the laws which apply to them and, therefore, seek to discern the alleged revelations and perform the recourse that they consider timely, in cases where they would feel aggrieved by administrative decisions considered to be illegitimate. 188 or revelations can aid the Pastors of the Catholic Church in their difficult task of discerning presumed apparitions, revelations, messages or, more generally, extraordinary phenomena of presumed supernatural origin.606 These procedural norms encourage the ecclesiastical authority to act with caution, in three stages: a. Judge first of all according to positive and negative criteria607; b. Then, if this review leads to a favorable conclusion, allow for certain public manifestations of worship or devotion, observing them with the greatest caution (which is equivalent to the formula: pro nunc nihil obstare); c. Finally, in the light of time and of experience (in particular the abundance of spiritual fruit provided by the new devotion), render, if applicable, a judgment on its authenticity and supernatural character. In order to carry out the first step, the Congregation encourages authorities to carry out a serious investigation of the facts, which raises a question as to whether this recommendation creates a right for the faithful concerned, or not. 606 www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_ doc_20111214_prefazione-levada_en.html 607A) Positive Criteria: a) Moral certitude, or at least great probability of the existence of the fact, acquired by means of a serious investigation; b) Particular circumstances relative to the existence and to the nature of the fact, that is to say: 1. Personal qualities of the subject or of the subjects (in particular, psychological equilibrium, honesty and rectitude of moral life, sincerity and habitual docility towards Ecclesiastical Authority, the capacity to return to a normal regimen of a life of faith, etc.); 2. As regards revelation: true theological and spiritual doctrine and immune from error; 3. Healthy devotion and abundant and constant spiritual fruit (for example, spirit of prayer, conversion, testimonies of charity, etc.). B) Negative Criteria: a) Manifest error concerning the fact. b) Doctrinal errors attributed to God himself, or to the Blessed Virgin Mary, or to some saint in their manifestations, taking into account however the possibility that the subject might have added, even unconsciously, purely human elements or some error of the natural order to an authentic supernatural revelation (cf. Saint Ignatius, Exercises, no. 336). c) Evidence of a search for profit or gain strictly connected to the fact. d) Gravely immoral acts committed by the subject or his or her followers when the fact occurred or in connection with it. e) Psychological disorder or psychopathic tendencies in the subject, that with certainty influenced on the presumed supernatural fact, or psychosis, collective hysteria or other things of this kind. It is to be noted that these criteria, be they positive or negative, are not peremptory but rather indicative, and they should be applied cumulatively or with some mutual convergence. 189 Let us hope that these new procedural elements will be respected in the future and that we will not engage in ad hominem battles that conceal power-games, as was the case, for example, in the apparitions at Tilly-on-Seulles, in Normandy, of which the Archbishop of Paris blocked recognition, while it was on the right track in Rome608. 1.2. The Difficulties Encountered In the past, the serious investigation foreseen in order to obtain a positive judgment on the character of the facts was very often rejected in favor of a hasty application of negative criteria, interpreted unilaterally, without sometimes even questioning the persons concerned • At Garabandal, Monsignor Juan Antonio del Val Gallo opened a new investigation (completed in 1986), taking into account the considerable defects observed in the work of the First Committee609; • At Kérizinen in Brittany (France), a duplicate prohibition was imposed by the Bishop of Quimper and Léon on 12 October 1956, and again on 24 March 1961, prohibiting the faithful from building a private oratory and going to pray the rosary on the premises of the alleged apparitions, while no investigation was taking place610. • At Montichiari in Italy, Mgr. Abate Francesco Rossi, then parish priest of the parish, said in private that he was absolutely convinced of the authenticity of the apparitions of the "Rosa mystica,” 611, and that the investigation was canonically biased: “Bishop Giacinto Tredici appointed a commission of inquiry. But in my opinion, the latter went to work with a definitely negative bias and in no way did he do his duty, because 1. No miracles were examined, 2. No witnesses were heard, 3 A physician declared Pierina Gilli to be a drug addict, which was absolutely malicious slander.” 608 LESSERTEUR (R.P.), Already for a long time, the Holy Office had recognized that there was nothing wrong with the apparitions of Tilly, and the Pontiff, who had himself read with great emotion the journal of the religious of the school, had given the order to complete the information and make a decision. Mgr. Amette [Cardinal of Paris] objected, rushed to Rome, and argued for reasons of expediency, to postpone the proclamation of a favorable decision. […] In the first months of last year (1908), Pius X ordered again the case to be resumed. Mgr. Amette ran again. […] The pope would then have let himself be persuaded, and would have ordered to wait. Pierre-Marie GRÜNNEISSEN, Présence mariale à Tilly sur Seulles, ed. Les Amis de Tilly (1996), p. 104-105. 609 www.lesamisdegarabandal.com/l'eglise%20et%20garabandal.html 610 Fauvel (Mgr. André) "We had in addition prohibited all priests and to go to Kérizinen or to advise it to anybody. Learning that the faithful continue to go there, we formally prohibit any form of devotion and worship at Kérizinen." Translated from La semaine religieuse de Quimper, 24 March 1961. 611 www.rosamisticafontanelle.it 190 • • At Dozulé in France, Father Curty severely criticized the seriousness of the canonical investigation carried out before 1998612, while the rejection of the message seemed to stem from spurious considerations613 In 2011, the bishop resumed the investigation, but he received a letter from the Congregation for the Doctrine of the Faith asking him "to see fit to put an end to any investigation without delay", considering the fact that his predecessor had writes: "I can not discern the signs that would authorize me to declare authentic the apparitions that are reported".614. At Lipa, in the Philippines, neither the bishop of the place at the time of the apparitions, nor his coadjutor were interviewed during the investigation carried out by their successors in 1950. Upon his arrival in 2003, the new Archbishop, Mgr. Ramon Argüelles, found no report in the archives of the Diocese. The new investigation that he had carried out in 1991 led to a contrary result, which enabled him to recognize the supernatural nature of the apparition and the rain of roses that happened afterwards. He himself wrote in the decree of recognition: “The 1951 decree, which denied the supernatural character of the facts was ‘from the beginning’ tainted by a ‘shadow of doubt,’ the fact that the bishop-signatories of the decree who were opposed ended by declaring, at the end of their lives, 612 CURTY (Père Christian) : Has the canonical investigation of your predecessor been conducted according to all of the legal standards required by law? Has each of the witnesses really and separately been interrogated? From the moment that it was maintained that there is no supernatural dimension, what explanation has been found about the 120 Latin quotations of scriptural or liturgical origin, that clearly Madeleine was not able to improvise or tap into the subconscious part of her memory, and that she could not be under the influence of her parish priest, also outdone by the facts? Have the 'Fruits' of this tree really been studied: the healings deemed complete and definitively recognized as 'inexplicable' by medicine, conversions that are profound and sometimes surprising and long-lasting, either obtained spontaneously on the Butte, on the occasion of a pilgrimage, or indirectly connected to the facts of Dozulé? Is there interest in the fact that many vocations (seminarians, consecrated religious) have recognized at Dozulé their point of departure and of awakening? Such are some of the many questions, which have not yet received a response and which have puzzled many of our Christian brothers engaged in pastoral care, whereas the Second Vatican Council asked them to overcome the passive obedience to which they were accustomed, in order to exercise an obedience now active and intelligent, and therefore informed and motivated. Translated from www.ressource.fr/devoilement/esprit_saint_devoile/E(-217).pdf 613 The message was rejected by the bishop under the pretext that the alleged request of Jesus to Madeleine Aumont, "Tell the Church to raise a cross [738 m] and at its feet, a sanctuary" seemed impossible to him. Yet a comprehensive study proving its feasibility was presented to local elected officials on 8 January 1997, and since then, a tower 828 m tall was erected in Dubai in 2010. 614 LADARIA (Luis), Archevêque de titulaire de Thibica, Secrétaire de la Congrégation pour la Doctrine de la Foi, Prot 19/1984-36132, 25 juillet 2011. 191 that they believed in the veracity of the apparitions.” 615. According to Rafael M. Villongco616, the members of the Commission of inquiry were forced to sign the decree under threat of excommunication. Aware of the difficulties resulting from the tension between charisms and authority, Pope Francis approved the 14 March 2016 letter Iuvenescit Ecclesia of the Congregation for the Doctrine of the Faith, on the relationship between hierarchical and charismatic gifts in the life and mission of the Church: Different charisms have never ceased to arise throughout the history of the Church; yet, it is only in recent times that a systematic reflection on these themes has been developed. This fact is due historically to the Montanist schism, from Christian antiquity, and then to the medieval apocalyptic doctrines which left a long-lasting negative mark on every charismatic claim, associated with an ethereal epoch of the Holy Spirit. Lumen Gentium totally overcomes this problematic legacy, distinguishing between hierarchical and charismatic gifts, and underlining "their difference in unity.” These graces, from the more eclectic to the more simple and the most widely disseminated, should be received with thanksgiving and bring consolation617. The Congregation’s document specifies the criteria for the discernment of charisms, one of which consists in the acceptance of the periods of testing that their beneficiaries have to undergo on the part of the ecclesiastical hierarchy. f) Because a charismatic gift may imply “a certain element of genuine originality and of special initiative for the spiritual life of the Church” and in its surrounding “may appear troublesome”, it follows that one criteria of authenticity manifests itself as “humility in bearing with adversities”, such that: “The true relation between genuine charism, with its perspectives of newness, and interior suffering, carries with it an unvarying history of the connection between charism and cross”. Any tensions that may arise are a call to the practice of greater charity in view of the more profound ecclesial communion and unity that exists618. 615 ARGÜELLES (Mgr Ramón Cabrera) : extracts from the decree of recognition of 9 December 2015; English text drawn from www.splendorofthechurch.com.ph/2015/09/13/Lipa-appearance-of-our-lady-officially-declared-authentic-by-Archbishop-Arguelles/ and from http://fr.aleteia.org/2015/09/28/je-suis-marie-mediatrice-de-toutes-graces/ on 20 May 2016. 616 www.marianmessenger.ph/index.php/maian-feature 617 OUELLET (Cardinal Marc), presentation of the document of the Congregation for the Doctrine of the Faith Iuvenescit https://fr.zenit.org/articles/importance-ecclesiale-des-charismespar-le-card-ouellet/ 618 Congregation for the Doctrine of the Faith, letter of 15 May 2016. www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20160516_iuvenescit-ecclesia_en.html 192 The question then arises as to whether passive acceptance, which constitutes one of the criteria for discernment, is or is not compatible with the canonical possibility offered to the faithful to claim their rights, taking into account the common good of the Church. To try to answer this, let us look at what types of tests are imposed on the seers of our time, and what answers are given. 1.3. The Tests Imposed Once the "serious" investigation has been conducted, the Congregation for the Doctrine of the Faith recommends to the competent authorities an appropriate approach, depending on the types of situations encountered, including sanctions if necessary: the competent Authority can intervene motu proprio and indeed must do so in grave circumstances, for example in order to correct or prevent abuses in the exercise of cult and devotion, to condemn erroneous doctrine, to avoid the dangers of a false or unseemly mysticism, etc619. Dean Philippe Greiner illuminated this concept of abuse in his thesis on the legal framework of proselytism, distinguishing between proselytism of good and bad faith: Depending on the circumstances, the practice of bad-faith proselytism can be considered a fault, and it can justify disciplinary measures, or correspond to an offense punishable by canon law, and lead to the application of a penalty for physical persons.620 His remarks may apply to private revelations, the beneficiaries of which apply to themselves the words of the Apostles: "It is impossible for us not to speak about what we have seen and heard" (Acts 4,20), and a fortiori: "We must obey God rather than men" (Acts 5,29). Philippe Greiner then described two main disciplinary measures provided by canon law in regard to persons who would be guilty of bad-faith proselytism, or at least considered as such, namely the withdrawal of pastoral care and the suppression of an association. We will expand the debate, distinguishing between three types of persons sanctioned: • The beneficiaries of the alleged revelations, and their friends; • The parish priests and religious who accompany them; 619 Congregation for the Doctrine of the Faith, « Norms regarding the manner of proceeding in the discernment of presumed apparitions or revelations » www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19780225_norme-apparizioni_en.html 620 GREINER (Philippe), Dean of the Faculty of Canon Law of Paris, « l’encadrement juridique du prosélytisme, en droit grec, français, européen (1950) et en droit canonique catholique romain. » Thesis presented 19 February 2005, at the Catholic Institute of Paris, p. 455. 193 • The pilgrims who practice a particular form of devotion related to these revelations. We will then examine the paths of recourse, and the manner in which the obligations and the rights of the faithful are taken into account. 1.3.1. Sanctions Against " Seers and Friends Abundant literature on private revelations provides a lot of evidence of the disciplinary measures that the Church has imposed on the faithful benefiting from private revelations, and on their friends. The simplest measure is to leave the seer in the shadows, and to collect the fruits of the revelation within the parish: In 1980, in the heart of the Muslim quarter of Anoumambo in Abidjan, Gabriel, an immigrant from Burkina Faso, was requested by his neighbors to bury a Christian left without burial. Having done so, he realized that the Christians of the neighborhood do not know each other. He said the rosary with those who gathered and their number increased, even though he began to be afraid of the Muslims who surrounded them. Then he had a dream: the Virgin Mary prompted him not to be afraid, and to build a chapel in this place. Today, the Chapel "Saint Mary Bangtaba621" is attached to the Parish of Saint Peter of Anoumambo and will become an independent parish dedicated to Mary Mother of God. The dream was forgotten and Gabriel is now let alone and bedridden. Here is another example in which the "visionary" was submitted to testing before the bishop recognized the apparition: In 1931, Elisabeth Ravasio became a sister and then Mother Eugenia622, in the Congregation of Our Lady of the Apostles, lived in France in a series of ecstasies and of mystical experiences. She conversed with the Father, imploring his mercy on the world and receiving the stigmata, in accordance with her desire to suffer with Jesus. On July 1, 1932, she received her first message of the Father for mankind623, and her case was submitted to Mgr. Clot, Bishop of Grenoble. In September 1933, the bishop appointed a Commission of inquiry on the facts. The examiners did not believe her at first glance, and their vexation increased until they themselves locked her in the 621 In the Moorish language, the word “Bangtaba” means "Let's sit down and get to know each other." 622 Although this is the same person, we will distinguish Sister Eugénia Ravasio during the period 1931-1935, from Mother Eugénia during the period 1935-1990 which concerns our study. 623 This event transformed the private revelation from personal to public. 194 Saint John of God psychiatric hospital, explaining to her superior: "This is a women’s sanitarium, and she will remain there until she tells the truth. She will remove her habit and veil, and will no longer receive communion or engage in meditation or the Way of the Cross: she will be able to attend Mass. Then we will send her to Italy where she will be put in prison for the evil that she did to the Church of France by her interventions of the Father.”The Sister Superior had her put out and, on 28 December, she ordered her to leave the novitiate and go to another home, as a canonical penalty. By order of the Bishop, she left for Pommiers… for 8 days. Then the investigation resumed, and the impression of the theologians evolved positively. Toward 1935, the Commission of inquiry issued a favorable opinion, and toward 1943, Mgr. Caillot concluded 1.) the virtues of Sister Eugenia were solid; 2.) she had a character that was precise, legitimate and appropriate to her mission [contained in the messages] from a doctrinal point of view; 3.) that the intervention was supernatural and divine was the only logical and satisfactorily explanation for the established facts, 4.) the finger of God was present. In this episode, which happened before the Second Vatican Council but is still not settled today, we will retain the surprising nature of the canonical penalty that was officious (confinement in a psychiatric hospital624) and official (the transfer to Pommiers), the sanctions that were imposed on Sister Eugenia “for the evil that she did to the Church in France.” How is she evil, since the supernatural character of the revelations was officially recognized by the Local Ordinary? Let’s go on to the second episode of her life, her election as Superior General of her Congregation: On 7 August 1935, during the General Chapter of the Congregation N.D. of the Apostles, Elisabeth was elected Superior General and then re-elected on 7 August 1947. Her success was noteworthy, to the extent that the number of houses went from 50 in 1932, to 144 in 1944, and she was the inspiration for the work of Raoul Follereau among the lepers, and the origin of the world center of the leper in Adzopé in the Ivory Coast. With regard to this, her congregation received the civic crown from the hands of the President of the French Republic, on 4 June 1950 in Paris. This was the same date that Mother Eugenia was removed at the request of the Congregation of Propaganda Fide, which made her sign a letter of resignation "on the grounds of 624 The confinement of a believer in a psychiatric hospital because of his faith is not the prerogative of the Catholic Church. This was encountered frequently in the Soviet Union, and Canonists without Borders has received testimony from Muslim countries where followers of Islam are still interned when they begin to turn to another religion. 195 incapacity." What did she do wrong? We know that she was denounced in Rome by a jealous sister who wanted to be appointed Secretary, in order to be able to travel with her. Apparently she did not know what was alleged against her and was not able, or perhaps did not want, to defend herself. She then endured significant tribulations in the repeated attempts to take away, and then return her religious habit. She founded various works for the poor, and “Catholic Unity,” which was created in 1953 and recognized as a Pious Union in 1964. On several occasions, administrative decisions were imposed on her to close the houses that she had established, and to move to another city. Each time she obeyed, provoking the non-comprehension of the sisters who had followed her: "We are being expelled? But what have we done?" Mother Eugenia testified: "The Archbishop of Reggio installed as Superior and Director General three people, without these appointments having been approved by the houses. I was seen as a simple boarder, having no voice in the Chapter, prohibited from going to religious and civilian authority. I was prohibited from working with Catholic Unity […] For 11 years, from 1957 to 1968, I lived in contradiction! As soon as I would begin to do something for our work, they would prevent me from continuing…" Although the Holy See intervened in her favor in 1966, the memory of Mother Eugenia is today tarnished by a dossier of various issues, kept secret from the mother house of the Sisters N.D. of the Apostles, and by a civil suit brought by her detractors. Currently, a growing number of faithful Catholics would like a light to be shined on this matter, including among them the Sisters of the Congregation N.D. of the Apostles. Here a canonical sanction which consisted in the revocation of pastoral assignments of the three superiors of the houses of Catholic Unity, and the impeding of voting rights of Mother Eugenia within her own congregation. The reasons that justify these sanctions are not known, but they have without doubt a link to a private revelation, whose supernatural character has not yet been recognized625. Even if the case of Mother Eugenia is old, it concerns our study, because the matter is not closed today. In effect, the Chancellor of the Diocese of Grenoble continues to make administrative decisions relating to Mother Eugenia, for example by refusing, August 26, 2014, to open its archives for the present research work: We do not communicate regarding the records pertaining to Mother Eugenia Ravasio. 625 The detractors of Mother Eugénia commenced a civil trial against her, and had her imprisoned in 1972, then had her condemned with a reprieve on appeal in 1977. She was mainly accused by her detractors of having created Catholic Unity in her own self-interest, and not to hoor God the Father through Jesus. 196 Shortly after, Pope Benedict XVI responded to a fellow Bavarian who contacted him to ask for the institution of a feast of God the Father in the month of August, as requested in the messages of the Father to Mother Eugenia. He replied that the case has already been decided negatively in the 9 May 1897 encyclical letter Divinum Illud Munus of Leo XIII626. In addition to the fact that this information is little known, it seems that theologians could easily find a solution, in establishing for example the feast of the Merciful Father, on the occasion of the Year of Mercy. Let us return to the case of Lipa, in the Philippines: The sisters received an order to destroy all the evidence relating to the apparition, the Bishop and his Coadjutor were transferred, as was the Superior of Carmel. All those who were directly related to the apparition had to suffer. The Carmel was quarantined. A psychiatrist, Dr. Pardon, threatened to intern Teresina if she persisted in her testimony. Later, her admission to Carmel was denied because of the apparitions, under the pretext that she was away some time of Carmel, whereas she had obtained permission for this627. Let us look at an actual case which occurred in Burundi, recounted below from several witnesses628 which agree as to the facts, but not as to their interpretation629: From 1990 onwards, a peasant by the name of Eusébie Ngendakumana (Zebiya in Kirundi), declared that she had benefited from private revelations from the Most Holy Virgin Mary, presenting herself under the name "Queen of Africa.” The apparitions occurred 626 “The danger, in both faith and worship, is to confuse the divine Persons, or to divide their unique nature; because the Catholic faith worships only one God in the Trinity and the Trinity in unity. Also, Innocent XII, our predecessor, refused absolutely, despite strong representations, to authorize a special feast in honor of the Father. If we celebrate in particular the mysteries of the incarnate Word, there is no feast honoring only the divine nature of the Word, and solemnities of Pentecost were themselves established from the earliest years, not in order to honor exclusively the Holy Spirit for Himself but to remind us of His descent, that is to say, his external mission.” 627 Cf. https://en.wikipedia.org/wiki/Teresita_Castillo et www.marianmessenger.php as well as the references they cite. 628 A dozen media organizations recount the events. Among them several media organizations of Burundians, including Iwacu, the Africa Report, the bulletin of liaison and information of the Salesians of the Great Lakes, as well as those of the ministries of the Interior of Burundi and of the Canadian Department of Justice https://www.justice.gov/sites/default/files/ eoir/legacy/2014/09/04/BDI104471.E.pdf 629 The Friends of Zébiya claim to be Christians like the others, prevented from praying as they wish. The State invites them to base their own church outside of the Catholic Church. The parish priest claims to have narrowly escaped physical violence. The Bishop feels that disobedience, arrogance, rebellion, lies, etc. characterize the group. 197 first on her property at a place called Businde, in the parish of Rukago, in northern Burundi, and then in the capital, Bujumbura. Little by little, people associate with her, and they testified to graces and conversions in abundance. Irritated by the frequent prayer vigils, neighbors complained to the civil authorities, who stopped the visionary and her entourage, and beat some of them so much that they fainted. On 21 October 2012, an altercation occurred between the friends of Zébiya, who wanted to enter the church of Rukago, and the priest who wanted to prevent them630, such that the civil authority was called in to restore order. In November 2012, the Bishop of Ngozi strictly prohibited all worship at Businde and requested that Ms. Eusébie and her "followers" to cease all activity detrimental to the unity and communion of the Church. In January 2013, some students were expelled from the University of Ngozi because they issued a "prophetic" publication considered "deceptive" by University authorities. They complained and won their case at the Tribunal de Grande Instance of Ngozi; but the University refused to allow them to return, because it depends on the bishop. In March and April 2013, the police shot projectiles at the followers, killing between five and ten people, arresting more than two hundred of them and condemning some to sentences of five months to six years in prison. In July 2013, the site of Businde was transformed into a military camp, while the orphanage which had been built by Zebiya and her friends was demolished631. In this case, the ecclesiastical administrative decisions against Zebiya and her friends are rather questionable632. We can however bemoan a clear lack of dialogue that might have allowed them to respect the discernment of the bishop, in particular in the light of the significance of the investigation provided for by the norms. One can also wonder about the degree of collusion between the Church and the State, which led to the arrest, injuries and even deaths of many faithful Catholics. 630 NSENGIYUMVA (P. Rémy, SDB), Curé de la Paroisse, « L’attaque des adeptes de Mlle Eusebie NGENDAKUMANA à la paroisse de Rukago » in Bulletin de liaison et d’information pour la Quasi-Province salésienne de l’Afrique de Grands Lacs (AGL), AGL News, Mars 2013, www.sdbagl.org/PDF/aglnewsmars03.pdf consulted on May 5, 2016. 631 SEGATWA (avocat Fabien) : extract of a letter of 10 March 2013 to the bishop of Ngozi: "With their meager resources, they have built a modern orphanage which welcomed from the outset 50 young orphans." 632 The parish council of Rukago made the decision to prohibit access to the Church to any girl or woman wearing pieces of cloth on her head. The Ordinary has formally prohibited all worship at Businde and he asked Ms. Eusébie and "her followers" to stop any activity which is detrimental to the unity and communion of the Church. 198 Returning to our issue of the link between passive acceptance, and the need to claim one’s rights while taking into account the common good of the Church, we find that in all the cases referred to, the beneficiaries of private apparitions have suffered with patience the tests, often illegal, that authorities have made them suffer. For example, the current Archbishop of Lipa considers that the suffering and humiliation which the visionary experienced confer a solid credibility to her visions and to her statements. The Virgin had warned the young Carmelite, "You are going to suffer, they will scoff at you, but don’t be afraid, because your faith will lead you to heaven.” Let us conclude by citing the case of Jeanne-Louise Ramonet in Brittany: Jeanne-Louise Ramonet, a peasant of Plounévez-Lochrist in Brittany, claimed that the Virgin Mary and Christ appeared to her between 1938 and 1968, in a place called Kérizinen in Nord-Finistère. Since then, the Rosary is recited each day and many pilgrims come to ask Our Lady of the Holy Rosary to intercede for the healing of minds and bodies. Yet, the magnificent private sanctuary built at this location on 17 September 1978 is still not allowed to house the Real Presence of Christ, despite more than thirty years of prayers on the part of thousands of pilgrims633, and a botched canonical investigation634. Teresita Castillo, Lipa (1927-) Mother Eugenia Ravasio, France, Italy Madeleine Aumont, Dozulé (1925-2016) Let us now consider the sanctions applied to the ecclesiastical authorities close to the seers. 633 More than 12 000 people participated in the inauguration. The visionary was received for 45 minutes by the bishop on December 28, 1974, after a third interdict on his part on May 20, 1973 and before a fourth interdict on 12 July 1975. 634 199 1.3.2. Sanctions against Parish Priests and Religious Favorable to the Apparitions The easiest disciplinary measure for a bishop to take, when he is confronted with a case of private revelation, is to transfer the priest who supports the beneficiaries of an alleged apparition, as well as any religious who accompany them. As we have seen, the revocation of a pastoral assignment is governed by canon 184 §1, while the procedure is outlined in canons 1740635, 1741 and 1742 when it comes to a parish priest. It begins with a request for the priest’s resignation, theoretically preceded by a phase of discussion with two other priests, justified and in writing. The first ground for transferring a parish priest mentioned by the canon 1741 is "a manner of acting which brings grave detriment or disturbance to ecclesiastical communion.” In practice, when a group of the faithful believes in a private revelation, or at least in an alleged revelation, it generally leads to division between the group of pilgrims who believe in it, and the group of parishioners who do not. Even when the two groups remain cautious, awaiting the discernment of the bishop, it is likely that this will cause division and, regardless of the attitude of the priest, he can be held responsible for it, resulting de facto in a reason for his transfer. Yet, it is normal that such disorder is produced in the life of the Church as soon as the Holy Spirit intervenes: "My thoughts are not your thoughts" (Isaiah, 55, 9), said the Lord; while Jesus, the Prince of Peace, has confirmed: Do not think that I have come to bring peace upon the earth. I have come to bring not peace but the sword. For I have come to set a man 'against his father, a daughter against her mother, and a daughter-inlaw against her mother-in-law; and one's enemies will be those of his household.” (Matthew 10, 34-36). In this regard, here are a few of the sanctions applied on a regular basis to the parish priests and religious who attend places of alleged revelations which are private and unrecognized, and/or support those who attend them: 635 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. 200 • • • • Prohibition on visiting the place, as is the case at Kérizinen636 or at Lipa637, Transfers of parish priests638, of religious639 and of bishops640; Expulsions of religious641; Interdicts (c. 1332) and suspensions (c. 1333), or even the threat of excommunication642; 636 On Friday, 12 October 1956, Monseigneur Fauvel, Bishop of Quimper and Léon, launched a first interdict on Kérizinen which was published in la Semaine Religieuse of Quimper: "Regarding the alleged apparitions of Kérizinen in Plounévez-Lochrist, we note the following points: 1.- the building that is there was built despite our express prohibition, expressed in writing and sent to the interested parties. No priest has received from us power to bless this building. 2.- We forbid all, priests and religious, to go to Kérizinen or to advise anyone to go there. (This note will be read from the pulpit next Sunday, 14 October, at all Masses in churches and chapels). To this interdict, the Association of Friends of Kérizinen responded that the prohibition was initiated without a canonical investigation and without warning and that, contrary to the assertion of the bishop, Jeanne-Louise has never received any express prohibition concerning the construction of a building but that on the contrary, she had received verbal authorization from the Vicar General to build an oratory on her property. 637 A Lipa, Carmel has been quarantined with an interdict on any person to enter and on the Sisters to leave (except for taking courses). 638 The abbot l’Horset, parish priest of Dozulé, was transferred when he wrote a book on this subject. 639 At Lipa, the Mother Superior of the Carmel was transferred. 640 At Lipa (Philippines), the two bishops of the place favorable to the events of 1948 were transferred to give place to a bishop who decreed in 1951 that the events were of a non-supernatural character. After their departure, there became known on 2 February 2017" the "abdication" of Archbishop Ramon C. Argüelles, shortly after he recognized the supernatural character of the apparitions. 641 Father Herman Harakandila was the superior of the Missionary Congregation of the Apostles of the Good Shepherd, erected in 1989 by Mgr. Ruhuna the Archbishop of Gitega, in Burundi, with the aim of encouraging priestly vocations and the mission, at the time when the Government of Burundi ousted huge numbers of foreign religious. Having supported the Marian apparition of "Our Lady the Queen of Africa,” he was forbidden to celebrate Mass, while the State put him in prison. According to a witness, the State would have proposed to let him out of jail, if he no longer promoted the apparition. He would have refused. Later the Bishops obtained his release, and sent a priest to him, before whom he finally signed a declaration by which he denied the apparition. Fifteen days later, he retracted this and disappeared into obscurity, and so his religious order had to obtain a decree of exclaustration. Following the disappearance of its two founders, Mgr. Ruhuna, who was murdered in 1996, and Father Herman, the new superior general of the young congregation made a call to Aid to the Church in Need to survive. Sources: White Fathers of Gitega, Church in Need, www.youtube.com/watch?v=sJ1ktdUzieA consulted on 21 September 2014. 642 At Lipa, on his death bed, one of the bishops involved may have said that they had forced the members of the 1951 Commission to recognize the non-supernatural character of the apparitions, under threat of excommunication. www.marianmessenger.ph/index.php/maian-feature 201 • Denunciation or neutrality in the face of secular authorities643. In France, Mgr. René Laurentin, whom we have met before he died on 10 September 2017, devoted his doctoral thesis in theology to the priesthood of the Virgin, and throughout his life he studied private revelations. The following are excerpts from his memoirs: I agreed to enter the dark domain [of apparitions] at the request of the authorities of the Church, including Cardinal Seper, the predecessor of Cardinal Ratzinger, who consulted me before establishing his standards for apparitions (1978). But the authority that has been attached to my name in the matter has hampered me: too many people have used it in an inappropriate way, as if dialogue or an investigation amounted to authentication. […] The result will see my slow descent into hell, but without drama or splendor, because I have limited the damage without throwing myself at anybody, and being obedient to the established order. Thus I have lost, in silence, a good part of the freedom that I had appreciated in the Church, up to the age of eighty, and verified the prediction of Jesus to his disciple Peter: "When you were younger, you used to dress yourself...” (Jn 21, 18). Any notoriety makes its beneficiary a man worth beating up, and my dual concern to clarify outstanding issues, and to rehabilitate reputations that had been defamed, considerably aggravated my case. […] Certainly, the repressions are less stringent and enigmatic than they were in the days of Father Congar, but the various methods are analogous to minimize freedoms that are human, Christian, priestly, related to the media, academic or of another type, which interfere with ongoing actions to hide official secrets. 644 1.3.3. Sanctions on Pilgrims Another sanction, or at least a "disciplinary measure" that Philippe Greiner cited regarding bad-faith proselytism is the suppression of an association. He 643 In Italy, Mother Eugénia did not receive support from the Church when she was imprisoned by the Italian State, upon her denunciation, probably fallacious, by religious of the congregation that she had directed. In Burundi, Father Hermann was imprisoned by the civil authorities, and the Church obtained his release at the price of his renunciation of his faith in the apparitions of Businde. 644 LAURENTIN (Mgr René), Mémoires, chemin vers la lumière, Paris 2005, Fayard, p. 351, 558, 559. 202 himself cited for example the May 4, 1987 suppression of the public association "Ark of Mary" by the Cardinal Archbishop of Quebec, although it had been erected by his predecessor in 1975645. Other types of sanctions are commonly applied, including: • Prohibiting the building of a sanctuary, even a private one, or the authorization of the celebration of worship646; • Prohibiting pilgrims from visiting the sites of alleged revelations647; • Prohibiting them from speaking and testifying, as for example in Dozulé 648; • Prohibiting the publication of books649; • Prohibiting particular clothing, as in Businde; • Attacking the reputations of pilgrims, considered credulous as in Dozulé, or even as enemies of the Church650; • Abandonment to the secular authorities651. 645 VACHON (cardinal Louis-André), Decree of suppression of the public association "Ark of Mary" May 4, 1987 in La Documentation catholique, t. 84, No. 1946, 6-20 September 1987, p. 864. 646 At Kerizinen, a letter of supplication of October 7, 1956 addressed to Monseigneur Fauvel, Bishop of Quimper and Léon and countersigned by 356 people, is kept in the archives (she asked for a Mass instead of the apparitions). It was not sent, because of the interdict which occurred 5 days later. http://kerizinen.free.fr/messagef2.htm 647 On 24 March 1961, Monseigneur Fauvel, Bishop of Quimper and Léon, had printed in la Semaine Religieuse of Quimper a second prohibition on Kérizinen: "In a note published in la Semaine Religieuse of 12 October 1956, and read in all the churches and chapels of the Diocese The following Sunday 14 October, we specified that a building had been built in Kérizinen despite our express prohibition. We had, in addition, prohibited all priests and religious to go to Kérizinen or to encourage anyone else to go there. Learning that the faithful continue to go there, we formally prohibited any form of devotion and worship at Kérizinen. We hope that this prohibition will be observed and that we will not have to resort to more serious measures." To this prohibition, the Association of Friends of Kérizinen replied that to their knowledge, the second interdict was imposed without canonical investigation and without warning. 648 On March 28, 1975, after the celebration of the Passion at 10:30 PM, the priest recommended to the approximately 50 persons in attendance to be silent about what they had seen and heard and do not understand. www.ressource.fr/francais/messages/messages21a30.html 649 Cf message de Bishop Pican, supra.. 650 The Bishop of Quimper and Léon published the 21 June 1975 decision of the Congregation for the Doctrine of the Faith that he commented on as well: "… the devotion maintained in this place and the cult that it wants to introduce are not in harmony with the Catholic faith, and must not be favored by the leaders of the Church. […] Those who propagate these messages and are working to promote a cult based on them are doing—perhaps in good faith, which is their excuse—a harmful work within the People of God." 651 In the Middle Ages, the Church delivered the "criminals of the faith" over to the secular power. Today, it is observed that the Church denounces to the secular power, or at least refrains from defending the Catholic faithful who were the beneficiaries of apparitions, such as Mrs. Madeleine Aumont, put under guardianship and placed against her will in a retirement home in Livarot. 203 There may be a question of the legality of these decisions, and of their character as administrative act that would permit filing a recourse. 1.4. The Path of Recourse and Justice Chapters 4 to 6 present a wide panorama of hierarchical and contentious-administrative recourses covering all of canon law, but we have not met any relating to disputes about private revelations. Is that to say that the administrative justice of the Church is not applicable in this area, that the intervention of justice is unknown because it is kept secret, or are there reasons why the Catholic faithful who have been the victims of administrative decisions do not make recourse? We have seen that Mgr. Laurentin has been a witness to what he called the "various methods" of the ecclesiastical hierarchy to stifle some private revelations. In his memoirs, he specified that private revelations of a public nature inevitably confer a certain notoriety on their authors, making them "men to shoot down.” In the face of these attitudes of the hierarchy, he himself chose the path of silence and submission which preserves for him a minimum of freedom to write, sacrificing all the rest. With this choice, he could have become complicit in violations of the rights of the faithful by ecclesiastical authority. He suggested that he had used the paths of diplomacy and mediation to support discreetly some "seers,” but he clearly did not use the legal path. The reason for this choice may be related to his decision to not make recourse in order not to poison the situations, or to an inability to act effectively regarding "official secrets,” which, according to him, constitute a "shelter" against contentious-administrative recourse? We do not know. 204 In the case of Garabandal652, the Bishop of Santander continued to apply in 1968 canon 1399 of the Code of 1917 even though this canon had been abrogated. The parishioners made no recourse, probably because they were unaware of their rights653. In the case of Kérizinen, ex gratia recourses have been filed regularly by the Association of Friends of Kérizinen with the Local Ordinary, with results more or less positive with regard to the personality of successive bishops. The Association has always sought to maintain dialogue, renouncing blind submission and the way of contention. This sometimes results in a degree of openness: You will find attached a note […] which […] takes note of the positive, and indicates at the same time the steps which will still have to be overcome. […] It is absolutely necessary to indicate clearly [in the brochure] that Jeanne-Louise said that she had had, between 1938 and 1965, more than 70 apparitions of the Virgin Mary and/or of the Lord Jesus, and received, during the course of these apparitions, messages that she transcribed in his notebooks; and that these apparitions and messages have never been recognized as having a supernatural origin …654 In the case of Zebiya in Burundi, a reference to canonical justice should be noted on the part of the Ordinary of Ngozi, in a letter of 2 April 2013 to the 652 From 1961 to 1965, very many people have been witnesses to inexplicable events, which then have made the headlines and given rise to a commission of inquiry, […] "On 22 August 1961, the members of the Commission appointed by the Bishop arrived at Garabandal, with the mission to study these strange phenomena. They were two or three priests, a physician and a photographer. Their conduct during the course of this evening does not seem to be able to be cited as an example: with regard to the observation of the events themselves, their provisions of impartiality, the extent of their gestures and their discomfort. […] For this last [Conchita], began the same day [27 July 1961] the testing arranged by the members of the Commission, Dr. Don José Luis Pinal and the priest Francisco Odriozola. To the tests, which weree more or less mental or emotional, was added a change of scene: presence at the beach, at performances, entertainment, etc. […] With this intensive treatment of worldliness, they used during their interviews with the girl certain techniques: a mixture of flattery and threats, those who were acting on behalf of the Commission finally arrived at what apparently they wished for, to extract from Conchita "evidence" against the veracity of everything that had happened. " (Cf. Eusebio GARCIA DE Pesquera, Garabandal, faits et dates, Résiac 2008, p. 31/152 p.) 653On 9 October 1968, the secretariat of the bishopric of Santander published a note in the Official Bulletin of the Diocese (Boletin O. del Obispado, noviembre 1968 p. 465.) about the alleged apparitions of Garabandal, recalling canon 1399 No. 5 of the 1917 Code of 1917, whereas this had been repealed. According to Father Eusebio GARCIA DE Pesquera, Garabandal, faits et dates, Résiac 2008, p. 103-104/152 p., "It was not a canonical condemnation, since no canonical trial, no study worthy of this name had preceded this note." However, he recalled that "In Spain, at that time, the word of a bishop was regarded as indisputable.” (Cf. Eusebio GARCIA DE Pesquera, Garabandal, faits et dates, Résiac 2008, p. 103-104/152 p.) 654 GUILLON (Mgr. Clément), extracts from the letter and note of 16 November 2007 addressed to the President of the Association of Friends of Kérizinen. (Archives of the Association) 205 lawyer Segatwa Fabien, calling on him to get the followers of Zebiya out of jail: … In case it seems to you that the bishop of Ngozi has violated a canonical law in the provisions taken to ask the faithful who are entrusted to his care to behave as Catholic Christians, be aware that he would like to better respond before the church courts competent in this field… One can ask if the prospect of appeal raised by the bishop is credible, as the lawyer Segatwa had no administrative act in writing from the bishop that he could have challenged, nor canonical skills which would have allowed him to bring the case before the Council of the Laity, with obligatory transfer to the Apostolic Signatura. It seems that the practical impossibility, for Zebiya and her friends, of a healthy dialogue with both the priest and the bishop, was one of the sources of the violence which was triggered. As for Father Hermann, he preferred flight, rather than recourse. A certain dialogue has existed in other places like Dozulé, where a resident filed an ex gratia recourse to the Bishop of Bayeux-Lisieux, after having received the 2 March 2006 letter below: My predecessor, Monseigneur Badré, in December 1985, and I myself, on various occasions and especially in Lourdes, in September 1989, the Cardinal Ratzinger, currently Pope under the name of Benedict XVI, in October 1985, we all had prohibited: any publication of books, brochures, cassettes. And any dissemination and gathering of funds in view of the construction of a sanctuary or of a gigantic cross of 738 meters. Any travel whatsoever to Dozulé. It is pointless to gather on this alleged hill of prodigies. We cannot declare the apparitions of Dozulé authentic. Therefore, dear Madam, you must comply with the decisions of the Church655. This letter could have been the object of disputes656, but the recipient did not file either hierarchical or contentious recourse. The attitude of respectful dialogue has produced very little fruit, since Sunday 29 May 2011, in the presence of the bishop and of a crowd of faithful, the parish priest of Dozulé imposed his hands on the head of a parishioner and uttered these words: Madam M., on behalf of the Church, I appoint you the one responsible for the reception of pilgrims on the hill of Dozulé. In difficulties I will be there to help you657. 655 www.ressource.fr/fdn/Dossier/Classeur2/BEElementsDeReponse_MgrPican_190306.htm N We have seen particularly that the imprimatur had been lifted for the publication of books relating to apparitions. 657 http://apotres.amour.free.fr/page33/DOZULE.htm 656 206 Since the publication of the first edition of this book, on 3 January 2017, a reliable source has said that some of the pilgrims of Dozulé were informed that the local bishop had undertaken further canonical investigation into the alleged apparitions of Dozulé, but that the Congregation for the Doctrine of the Faith had asked him to stop the investigation before its completion, which he did. The faithful of the place remain perplexed by this situation that appears improbable, since it is contrary to the recommendations of the same congregation. This situation, however, presents some similarities with the recent developments in Lipa in the Philippines. After having conducted a thorough investigation, the Bishop of Lipa has recognized the revelations as supernatural, indicating the "doubtful" character of the decree of prohibition of 1951658. Here too, the Congregation for the Doctrine of the Faith intervened by revealing a document kept secret for more than fifty years, in which Pope Pius XI would have validated in forma specifica the investigation strongly tainted with illegality, concluding the non-supernatural character of the apparitions and of the rain of rose petals659. While announcing the decree of the Congregation for the Doctrine of the Faith rescinding its own decree660, Mgr Argüelles stated that he would not appeal this decision. Without knowing the reasons, it should be noted that Bishop Argüelles was invited to resign his office of Bishop of Lipa on February 2, 2017, two years before he reached the age limit, and a new bishop was appointed in his place immediately. A prominent doctor in canon law criticized the choice of the author to mention the private revelations in this book: I was surprised to read for example the passage (with photo!), where you mentioned the pseudo-revelations of Dozulé or other places... Be 658 In 1951, no contentious-administrative recourse was possible, since the second section of the Supreme Tribunal was not yet created. Even if it had been created, contentious-administrative recourse would have been impossible to win, because evidence of a possible violation of the law was not known to the visionary or her friends. 659 Cf. Zulueta, Lito (June 1, 2016). "Vatican overrules Batangas bishop; declared 1948 Marian apparitions not genuine.” The Philippine Daily Inquirer. Retrieved 6 June 2016. Eugenio, Damiana L. (1996). Philippine folk literature: The Legends. University of the Philippines. p. 109. ISBN 978-971-8729-05-2; "Vatican reverses ruling on Lipa Marian apparition.” GMA News. June 3, 2016. Retrieved June 6, 2016. 660 HOYEAU (Céline), in La Croix urbi & orbi of 6 June 2016: It is this decree that the Congregation for the Doctrine of the Faith has called "null and void,” "In light of the fact that the 1951 Declaration was a decision confirmed by the Sovereign Pontiff and therefore final.” "The subject of the phenomenon of Lipa does not fall under the authority of the local diocesan bishop,” said the decree of the CDF. 207 careful not to fall to an incongruous journalistic level, in a book which is considered more serious661. Conversely, a member of the Catholic faithful wrote: I have read the 2017 book by Yves-Alain and you have not written for nothing. The passages on the period 1022 to 1307 in particular are remarkable and for me very meaningful (Cathar period, Templars and Hospitallers...). The same with regard to private revelations, which I have experienced, and of which I continue to collect very startling testimony which is entrusted to me so that I can do research, to the thread of improbable meetings [...] Chapter 7 renders justice662. Finally, it seems to us important to maintain the sensitive subject, because we have seen that alleged revelations have prompted many individual administrative acts, relating rightly or wrongly to infringement on the rights of the Catholic faithful. In addition, it seems to us that, if a presumed revelation does not qualify publicly as a supernatural revelation, it should not be characterized as a “pseudo-apparition,” since the Ordinary has not yet made an official pronouncement in view of the in-depth investigation requested by the Congregation for the Doctrine of the Faith. Taking these elements into account, a survey of associations of the pilgrims to several places of non-recognized apparitions has allowed us to understand why their members do not resort to ecclesiastical justice, inasmuch as they have the conviction of a deep injustice with respect to the seer and the messages: • The ecclesiastical hierarchy is particularly sensitive to alleged revelations which could be a source of division in the ecclesial communion; • The persons concerned are connected to the Church, and do not want to break a dialogue with their bishop, no matter how difficult and tenuous it may be; • No associations of pilgrims had received the legal personality that would allow them to act; • Their members do not have adequate knowledge in the field of canon law to assert their rights, and the priests who could dispense this knowledge are subject to the prohibition to attend the places concerned; • The decisions of the bishop are not clearly administrative acts subject to recourse; • All the decisions of the Congregation for the Doctrine of the Faith are communicated to the local bishop, and are therefore not contestable by the Catholic faithful concerned. In addition, these are sometimes approved by the Pope in forma specifica, thus giving them a definitive character, 661 662 E-mail addressed to the author on 3 February 2017. E-mails addressed to the author on 4 and 6 Septembre 2017. 208 • The documents of the report, and in particular the canonical investigation, are not disclosed, and thus it is not possible to contest them. We have nonetheless found an exception, with a contentious recourse filed with the Supreme Tribunal for an issue related to a private revelation663. On 10 March, 1975, the association "The Army of Mary" was canonically erected by the Archbishop of Quebec, according to the 1917 Code. Subsequently, it appears that the association was in the sphere of influence of the community of “Our Lady of All Peoples,” which is based on the mystical life of its foundress and on messages that she received between 1940 and 1959. Yet devotion to Mary the Mother of All Peoples was condemned under Pius XII. Also, the Cardinal Archbishop of Quebec asked the association to stop "embarking on tracks that are dangerous and not completely Orthodox,” after which he obtained the following opinion of the Congregation for the Doctrine of the Faith: "After having studied the writings disseminated by the Army of Mary, this Congregation […] approves and confirms these warnings, leaving you with the latitude to take all measures that you deem to be necessary, without excluding the possibility of suppressing the association ad normam iuris.” By decree of 4 May 1987, the Archbishop then removed the recognition of the association. The decree was the object of hierarchical, and then contentious-administrative recourse, but it was not admitted to discussion due to the obvious lack of foundation, in accordance with the decisions of the Congress on 17 March 1989 and 1 March 1990, and of the College on 20 April 1991. It will be noted that the decision of the Tribunal does not address the merits of the position of the Congregation for the Doctrine of the Faith, which is not regarded as an administrative decree; but rather the decree of suppression of the association, validated by the Pontifical Council for the Laity, based on the position of the Congregation. The bishop’s decision regarding the Army of Mary leads us to look more closely at a second, related subject, namely, that of new religious movements and alleged sects. 2. New Religious Movements and Alleged Sects From the dawn of Christianity, Christians were, quite rightly, considered a sect, since the word “sect” comes from the Latin verb sequor, sequeris, which means “to follow,” and Christians followed Jesus Christ. In the 21st century, 663 Prot 18881/87/CA, Studia Canonica, 25 (1991), p 403-415. 209 the understanding of the word “sect” has evolved, with different meanings in the civilian and religious worlds664. It has become a hot topic in France, like other countries, because of current civil and religious events. On 12 June 2001, France passed a law "to strengthen the prevention and the suppression of sectarian movements" […] This law was immediately attacked by the Jehovah's Witnesses before the European Court of Human Rights; but their appeal was dismissed on 6 November 2001. […] It is primarily within Catholicism that this notion of sect presents a pejorative connotation: the 1917 Code also defined negatively all the groupings that it considered schismatic or hostile, "Catholic” sects, “Masonic” sects, etc. The other major religions have a more positive or at least more neutral attitude vis-à-vis minority groups or "new religious movements,” even if they surprise or disturb the established religious order665. On 29 April 2016 in Dijon, at the conference of the secular world entitled The “Anti-sect" Battle: Assessment and Prospects666, Thierry Bécourt confirms its intentions for 2002: It is obvious that a current of intolerance runs across France and is being propagated in Europe. It reminds us of darker periods in our history. The spectre of Vichy threatens us... This nationalized intolerance that we live today in our country which says "rights of Man,” marks the beginning of a real loss of freedom, the freedom of thought... which, if we lose our vigilance, will open the door to totalitarianism667. Despite the subjective and therefore biased nature of these words, it is interesting to see how the Church behaves, and its justice in what Thierry Bécourt called "a new witch hunt.” 2.1. The Applicable Law In canon law, the 1917 Code several times cited persons who gave their support, or who publicly joined a heretical or schismatic sect or the Masonic sect, 664 VÉDRINE (Hubert) French Minister of Foreign Affairs, letter of 6 December 1999 to Mr. Albright, terminating the diplomatic dialogue of France with the United States on the theme of religious freedom, cited by Etienne OLLION, Raison d’Etat, histoire de la lutte contre les sectes en France, édition La découverte, 2017, April 2017, 360 p 665 WERCKMEISTER (Jean), « les sectes », in Revue de droit canonique, 51/1, 2001, p. 3-4. "It is worth noting that in the same magazine (p. 44), Le Vallois (Philippe) is opposed to the appreciation of intolerance for only Catholics, in recalling how the Protestants are shown to have been intransigent vis-a-vis the Anabaptist sect. 666 www.coordiap.com/press3012-conference-lutte-anti-sectes-bilan-et-perspectives.htm 667 BECOURT (Thierry), La nouvelle chasse aux sorcières, Paris, Omnium éditions, 1992, 111 p. 210 or to societies of the same type668, in forbidding them to participate in voting (canon 167), to be admitted to the novitiate (canon 542), to belong to an association (canon 693), to be godparents (canon 765), to marry in a religious ceremony (canon 1060), or to have a Christian burial (canon 1240). They were obliged to be declared “notorious,” and be excommunicated (canons 1214 §1669 and 2335). Likewise forbidden were books dealing with Masonic sects and other societies of the same kind, which argue that they are useful and not harmful to the Church and civil society (canon 1399). Currently, the 1983 Code partially contains these canons670, without using the word “sect,” but preserving the word “heresy,” aware that belonging to an atheist sect is comparable to heresy671. In addition to the Code, various pronouncements specify the position of the Magisterium. In 1981, the Permanent Council of the Church of France created the group "Pastoral and Sects", led by Jean Vernette672. 668 Before 1954, it was mainly the freemasons, Socialists, Old Catholics, communists, and of the school of the teaching of Jean Mace, then in 1954, two brother preachers clarified the context, namely H. CH. CHARY, L’offensive des sectes, Paris Cerf et M. B. LAVAUD Sectes modernes et foi catholique, (Paris Aubier), by attracting the wrath of Protestant authors like Jean SEGUY, Les sectes protestantes dans la France contemporaine, Paris 1956, Beauchesne & Fils. MESSNER (Francis), Les Nouvelles religions, cours reprographié, Strasbourg, USHS, 1988, p. 33 cited by LE VALLOIS (Philippe) « Définition de la secte et attitudes envers les sectes dans l’Église catholique romaine » in Revue de droit canonique, 51/1, 2001, p. 53-73. 669 Can. 2314 § 1 All apostates of the Christian faith, all heretics or schismatics and each of them: 1° incur by the fact itself an excommunication; 2° if after a warning, they do not come to recant, they are to be deprived of any profit, dignity, pension, office or other charge, if they had these in the Church, and are to be declared infamous; after two warnings, those who are clerics must be removed. 3° if they have given their name to a non-Catholic sect or have publicly adhered to one, they are infamous by that very fact; taking into account the prescription of can. 188 n. 4, that clerics, after an inefficcious warning, are to be demoted. 670 Cf. c. 316 for accession to a public association, c. 1041 for validly receiving the sacrament of orders, c. 1124 for marriage, c. 1184 for ecclesiastical funerals. 671Response of the CPI/17-67 of 30-07-1934 (AAS 26 [1934] 494; DC 32 [1934] col. 901-902). 672 VERNETTE (Jean Maurice), born on 26 February 1929 in Port Vendres, ordained a priest of the Diocese of Montauban on March 30, 1952, doctor of theology, licentiate in philosophy and canon law, was known for his great knowledge of sects. In 1973, the Permanent Council of the French Bishops’ Conference appointed him delegate to the episcopate for questions on sects and new religious movements. He published many books on sects between 1976 and 2001, including Sectes et réveil religieux Quand l'occident s'éveille, Salvator, Mulhouse, 1976 and Les sectes, Paris, Presses universitaires de France, coll. « Que sais-je ? », No. 2519, 1990 or Dictionnaire des groupes religieux aujourd'hui, with Claire Moncelon, Presses universitaires de France, 2001. 211 On 3 May 1986, the Roman Curia published a document entitled "The Phenomenon of Sects or New Religious Movements: A Pastoral Challenge.” Taking into account the ecumenical and interreligious-dialogue approach, Philippe the Vallois distinguishes three cases: • Sects of Christian origin, namely groups that add to the Bible other books and other prophetic messages; • Religious groups with a vision of the world that is distinctly their own, deriving from the teachings of one of the major religions of the world; • Certain groups that are normally seen as a threat to personal freedom and to society in general. On 5 April 1991, the fourth plenary meeting of the Consistory of Cardinals had for its theme "Sects or New Religious Movements,” in the five continents. Cardinal Arinze, then President of the Pontifical Council for Interreligious Dialogue, set out "the challenge of sects or new religious movements, a pastoral approach673" replacing the term "sect," which was considered to have too many negative meanings, with the expression "new religious movements," better adapted to cover new movements of protestant origin, sectarian groups which have Christian roots, new movements in Asian or African countries, and those of Gnostic or esoteric types. He called bishops to discernment, judging some of their reactions on the ground to have been excessive, and asked them to put aside condemnation, discrimination, and generalizations that apply to all new religious movements the negative aspects of a few. On 15 November 1991, the Conference of the Bishops of France published "The Catholic Churches, the Sects and New Religious Movements in France674.” In 1996, Mgr. Jean Vernette criticized in the name of human rights the report on sects adopted on 22 December 1995 by the National Assembly’s Commission on Sects675, published on 10 January 1996, which establishes a list of 173 "sectarian movements" based on secret works of general information and according to criteria which, in his opinion, can be applied to almost all established religions676. 673 ARINZE (Cardinal Francis), Le défi des sectes ou des nouveaux mouvements religieux, approche pastorale, in DC 19 mai 1991, No 2028, p. 483-499. 674 Document-Episcopat No 15, novembre 1991, p. 3, col 2. 675 The report was approved on 22 December 1995 by the seven members present, eight days after the massacre of the Solar Temple, including relatives of the victims and the filmmaker Yves Boisset have declared after the fact that it was not a collective suicide but a murder with a flamethrower. www.assemblee-nationale.fr/rap-enq/r2468.asp 676 Outside of France, the Parliamentary report has been the subject of violent criticism, including that of Massimo INTROVIGNE and J. Gordon MELTON "Pour en finir avec les sectes le débat sur le rapport de la commission parlementaire. » http://ec.cef.fr/wp-content/uploads/sites/2/2014/05/pontier_reponse_hamant.pdf 212 In 1997, Opus Dei reacted against a report on sects by Belgian Parliamentarians, which portrayed them as similar to this category, accusing them of " a fundamentalist and elitist Catholicism.” In 2013, Yves Hamant, President of Istina, as well as other persons, addressed to the Bishops of France "a vigorous appeal to denounce practices of sectarian leanings within the institutions of the Church.” The President of the Conference of the Bishops of France responded in these terms on 7 November: We have received this as the cry of people suffering within the heart of the Church because of what they have experienced personally or their relatives have experienced or still experience. We think of those who are injured, sometimes in the long term, by the behavior of some members of the Church. As the President of our Conference, I would like in the name of all of us to tell you say that these practices dismay and shock us. To assure you of our prayers for them is not enough; we want to bear with them their suffering, to assure them of our compassion, to help them in their reconstruction677. The result was the establishment of a cell for the sectarian drifts in Catholic communities within the Conference of the Bishops of France678, as well as the publication in September 2014 of a list of criteria for the discernment of identifying behaviors of sects679. Nothing was said, however, about the procedure to follow in the case of a presumed sectarian drift, and, in particular, about the protection of rights of the Catholic faithful who are members of the communities in question. 2.2. Difficulties and Sanctions In a struggle characterized by secretly informing, exclusion and fear which evokes dark periods of history, three distinct types of difficulties appear: • Violations of the rights of victims of deviant processes within the Church; • The combining of deviant groups and religious groups, causing exclusions and sanctions against the members of these groups; • The connivance of certain Catholic priests with the French State and with the Masonic lodges, which have sometimes taken advantage of the fear of sects to carry out an attack against religion. 677 http://ec.cef.fr/wp-content/uploads/sites/2/2014/05/pontier_reponse_hamant.pdf 678 www.eglise.catholique.fr/structure/cellule-pour-les-derives-sectaires-dans-des-communautes-catholiques/ 679 SORLIN (Soeur Chantal-Marie), on the staff of the Bureau des Dérives Sectaires www.eglise.catholique.fr/wp-content/uploads/sites/2/2015/03/CRIT%C3%88RES-sep.2014.pdf 213 Nobody is effectively immune from the phenomena of exclusion, resulting from a stigmatizing of deviant groups, as Pope Benedict XVI himself testified, four years before his resignation: At times one gets the impression that our society needs to have at least one group to which no tolerance may be shown; which one can easily attack and hate. And should someone dare to approach them – in this case the Pope – he too loses any right to tolerance; he too can be treated hatefully, without misgiving or restraint680. Opus Dei learned this at its own expense, when Monsignor Jacques Trouslard, honorary canon, charged by the French church to the documentation on the sects, identified in them ten characteristics of sects681. He was rewarded by the French State with the high distinction of Knight of the Legion of Honor682. Some French bishops have been recipients of reports of general information which are at the origin of the 1995 parliamentary report on sects, or of antisect groups such as UNADFI, largely subsidized by the French Government. Sometimes, on the pretext of this unverified information, they deny rights to members of movements considered to be sects, or attack their reputations without allowing them the right to self-defense. By adopting the form of an open letter, the President of the French Bishops’ Conference made problem public, leaving it to the press to comment on his remarks. The press did not fail to do so, by citing possible "spiritual abuse" on the part of the Béatitudes, the Legionaries of Christ, the Point-Coeurs, the Community of Saint John... Contrary to canonical procedures protecting the reputation of the parties, it is to be feared that They single them out in the media, often doing irreparable damage to the reputations of innocent people.683 680 BENEDICT XVI, , "Letter of His Holiness Pope Benedict XVI to the Bishops of the Catholic Church Concerning the Remission of the Excommunication of the Four Bishops Consecrated by Archbishop Lefebvre,” Vatican City, 10 March 2009, http://w2.vatican.va/content/benedict-xvi/en/letters/2009/documents/hf_benxvi_let_20090310_remissione-scomunica.html 681 TROUSLARD (Jacques), Communication aux chefs d’Établissement de l’Enseignement Catholique. This document, put online by the Church of Scientology on October 18, 2002, was removed on 11 June 2006, at the request of the Apostolic Nuncio. http://scientologie.fraude.free.fr/12/opus-dosnon.htm, but parts of it may be found on other sites, like www.prevensectes.com/opus11.htm, consulted 17 December 2016. 682 Decree of 13 July 2001, on the promotion and appointment to the Legion of Honor, JORF No.162 of 14 July 2001 p. 11,337. 683 COTTON (Marc-André) « L’Etat inquisiteur », Editions des 3 monts, 3rd edition, Auxerre 2010, p. 14. 214 2.3. Possible Recourses It happens that some members of groups designated as sects make contentious-administrative recourse against the position taken by administrative authority. After the recourses of members of the "Army of Mary" and of the association "Call to Action Nebraska,” here is a third example: A member of a private association of the faithful that is the subject of a warning displayed in a monastery complained of damage to its reputation, because of a letter from ecclesiastical authority addressed to a person who had requested information on this association. The Supreme Tribunal did not accept the recourse to discussion, stating "that it has not been demonstrated that the disputed response-letter is an administrative act, because the hierarchy responded only to a woman who asked about this associations’ connection to the Church, noting the report of a French Senator and other internet sources684. In the face of this situation, a canonist can only speculate on the merits of the sources that the hierarchy uses, citing the parliamentary report on sects brought by well known Freemasons and the site www,sos-dérive-sectaire.fr, which refers explicitly to "the accuser of one’s brethren" as the webmaster of the site calls himself phonetically685. One also wonders about the credibility of the advisers chosen by the French episcopate, namely Mgr. Trouslard who claimed to be "obsessed by sects686,” and Mgr. Vernette, who has contracted a marriage687. One finally has to deplore the fact that none of the three appeals filed which have come to our knowledge has been admitted to the discussion, which could reveal a problem that is structural, and not merely circumstantial. As for the response of the President of the French Bishops’ Conference on sectarian tendencies within the Church, it is perhaps surprising that it sends the victims to the justice of the French State, without mentioning any of the canonical procedures in force within the Church. 684 Prot 49737/14 CA, cases submitted to Canonists without Borders. www.sos-derive-sectaire.fr/AIcourrier.htm consulted on 22 Septembre 2013. 686 http://opuslibre.free.fr/v/spip.php?article22 Mgr. Trouslard joked about the phonetic similarity between being “obsessed by sects” that no one mentions, and being “obsessed by sex” that people speak about often. 687 VERNETTE (Mgr. Jean-Maurice) He got married on July 24, 2002 in Toulouse to Ms. Liliane Josette Moncelon, whose name is in reality Claire, Liliane, Josette, as was recalled on 20 December 2002 by the family affairs judge of the Superior Court of Tours (France). 685 215 We want to tell you forcefully that we wish to continue to act so that situations are clarified, so that truth may appear when necessary, and so that those who have been victims of deviant processes might find among the bishops an attentive ear and understanding. […] Some behaviors that you denounce fall within the criminal justice system. No one is above the law. The victims have the prerogative, if they wish, to lodge a complaint before the courts when this happens 688. In failing to cite the ecclesiastical administrative justice, it seems that the Bishops of France consider that it does not play a role in identifying, limiting and resolving difficulties related to presumed sectarian tendencies within the Church. Without doubt this is it due in part to the lack of effect of organizations of dialogue, such as diocesan mediation committees, which Pope Francis however seems to value in his exhortation Evangelii Gaudium: In its mission to foster a communion that is dynamic, open and missionary, he [the Bishop] should stimulate and search for the maturation of the organizations of participation proposed by the Code of Canon Law and other forms of pastoral dialogue, with the desire to listen to the whole world, and not just the few who are always quick to pay him compliments. In conclusion, let us reflect upon these words of Pope Francis, applying them to the ecclesial communities rejected by the hierarchy: A Church without martyrs… is a church without Jesus […]the greatest strength of the Church today is in the small churches, small, small, … persecuted689. Mother Eugenia 688 http://ec.cef.fr/wp-content/uploads/sites/2/2014/05/pontier_reponse_hamant.pdf FRANCIS (Pope) Homily of 30 January 2017, during morning Mass in the house-chapel of Saint Martha, Vatican City. 689 216 Chapter 8 : Administrative Justice for Dicasteries We have seen that the Vatican Dicasteries had the responsibility of dealing with hierarchic recourses that they received in their respective areas of competence. It is not possible to carry out a detailed analysis, because their number is very important and their confidentiality must be preserved. We must therefore content ourselves with fragmentary information drawn from three major secondary sources: • The competencies of the Dicasteries, as specified in the Apostolic Constitutions Regimini Ecclesiae Universae of 1967 and then Pastor Bonus, as well as subsequent motu proprio and the general regulation of the Roman Curia of 30 April 1999690; • The administrative and judicial activity of the Dicasteries, as is published annually in the activity reports of the Holy See691, commented on by authors such as Mgr. Charles Lefebvre692, or specifically addressed by authors such as Punderson693 or Marchesi694; • Contentious-administrative recourse against decisions of the Dicasteries, which are included in the case-law of the Second Section of the Supreme Tribunal, gathered into our database. Canonists sometimes provide qualitative comments on the Dicasteries, whose decisions are challenged. Similarly, Sergio Aumenta believes that the acts that have been contested originate largely within two congregations (for the clergy and for the IVC), whereas the other Congregations are represented in very small numbers." In 2009, Kurt Martens stated that Cases in the area of parish law are probably the most numerous: recourses against the suppression, merger, or alteration of parishes and the reduction to profane use of the parish church.695. Thanks to our gathering and analysis of jurisprudence696, we are able to qualify and clarify these assertions—despite the incomplete nature of the information 690 AAS 91 (1999) 629-699. We will rely mainly on the last published report, for the year 2015. 692 LEFEBVRE (Mgr Charles), Actes récents du Saint Siège, in L’année canonique, 1971, p. 655 673. 693 PUNDERSON (Joseph R.), hierarchical recourse to the Holy See: Theory and practice, CSLA Prodeedings 62 (2000), 19-47. 694 MARCHESI (Mario), « I ricorsi gerachici presso i dicasteri dalla Curia », Ius ecclesiae, 8 (1996) 71-96. 695 MARTENS (Kurt), Protection of Rights… », op. cit. p. 681. 696 Cf. the chapter on the database. 691 217 which could be verified, thanks to cooperation with the Second Section. First of all, here is a list of the Dicasteries697, as they stand after the Apostolic Constitutions of 1967 and 1988: REGIMINE ECCLESIAE UNIVERSAE Doctrine of the Faith (Art. 29-40) Oriental Churches (Art. 41-45) Discipline of the Sacraments (Art. 54-57) Rites (Art. 58-64) Bishops (Art. 46-53) Evangelization of Peoples and Propagation of the Faith (Art. 81-91) Clergy (Art. 65-70) PASTOR BONUS Doctrine of the Faith (Art. 48-55) Oriental Churches (Art. 56-61) Divine Worship and Discipline of the Sacraments (Art. 62-70) Causes of Saints (Art. 71-74) Bishops (Art. 75-82) Evangelization of Peoples (Art. 8592) Clergy (Art. 93-98) Institutes of Consecrated Life and Religious and Secular Institutes (71- Societies of Apostolic Life (c. 10574) 111) Catholic Education (originally Congregation for Seminaries and EducaCatholic Education (Art. 75-80) tional Institutions) (Art. 112-116) Commissions (Art. 83-84 ; 99-104) Offices (Art. 114-134) Secretariats698 Tribunals (Art. 104-113) Tribunals699 (Art. 117-130) Pontifical Councils (Art. 92-102) Pontifical Councils700 (Art. 131-170) Administrative Services (Art. 171182) Advocates and Institutions Attached to the Holy See (Art. 183-193) 697 Pastor Bonus Art. 2 — § 1. By the word "dicasteries" are understood the Secretariat of State, Congregations, Tribunals, Councils and Offices, namely the Apostolic Camera, the Administration of the Patrimony of the Apostolic See, and the Prefecture for the Economic Affairs of the Holy See. § 2. The dicasteries are juridically equal among themselves. § 3. Among the institutes of the Roman Curia are the Prefecture of the Papal Household and the Office for the Liturgical Celebrations of the Supreme Pontiff. 698 Secretariat of State, Secretariat for the Economy, Council for the Economy, Council for Social Communications. 699 Apostolic Penitentiary, Roman Rota, Apostolic Signatura. 700 The Pontifical Councils for the Laity, for the Promotion of Christian Unity, for the Family, Justice and Peace, Cor Unum, for the Pastoral Care of Migrants and Itinerants, for the Pastoral Care of Health Care Workers, for the Interpretation of Legislative Texts, for Interreligious Dialogue, for Culture, for Social Communications, for the Promotion of the New Evangelization. 218 Let us examine their legal activity in favor of law and justice. As of 15 February 2017, our database contained a total of 853 contentious-administrative recourses for which Dicastery is specified. Among these recourses, 116 of them are the subject of a sentence of rejection in limine or non-admission to discussion, while the corresponding decision of the Tribunal is itself the subject of recourse. Including these as recourses against a decision of the Supreme Tribunal, the number of recourses by Dicastery where the administrative acts being challenged had originated are as follows: Congregation/Council Recourse Percentage Clergy 353 41 % Consecrated Life 230 27 % Supreme Tribunal 116 14 % Laity and Family 39 4.5 % Oriental Churches 30 3,5 % Evangelization of Peoples 25 3% Education 23 3% Bishops 9 1% APSA 9 1% Doctrine of the Faith 5 0.5 % Divine Worship 4 0.5 % Other 10 1% The Congregation for Clergy and the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life are at the top, with 41% and 27% of recourses respectively, which allows us to quantify the usual appraisals of authors. But the presence of the Supreme Tribunal701 in third position, with 14% of the recourses702, constitutes a great surprise with respect to the canonical literature. Rather than stay in the realm of generalities, let us try to clarify the situation for each Dicastery. 701 In jurisprudence, the Tribunal is often listed as HST, huius supremi tribunalis The actual percentage is, in our opinion, more important than the figure indicated, because the Activity Report of the Holy See (AAS (2004), p. 726) indicates that 100% of the cases considered in plenary consist of recourses against decrees of Congregations, while some of them relate to recourses against decrees of the Tribunal of non-admission to the discussion. 702 219 1. Recourses in Relation to Each Congregation 1.1. Congregation for the Doctrine of the Faith The competences of the Congregation for the Doctrine of the Faith, the heir to the “Holy Office,” are defined, during the period under study, by the motu proprio "Integrae servandae" of 7 December 1965, Articles 29 to 40 of Regimini Ecclesiae Universae, then 48 to 55 of Pastor Bonus of which a few excerpts will be found here703, as well as by the motu proprio “Tredici Anni”of 6 August 1982704 and Sacramentorum Sanctitatis Tutela of 30 April 2001. Even if its role is mainly to promote sacred doctrine, the Congregation has retained the competences of the disciplinary order, to safeguard the faith which is a "common good,” a richness for all, starting with the poorest and the most disadvantaged when they are faced with falsehoods705. Historically, the Congregation for the Doctrine of the Faith has always exercised and continues to exercise judicial power for certain specific causes related to the defense of the faith and morals, and also the dignity of the sacraments, particularly reconciliation and the Eucharist706. When the Congregation is confronted with facts or theories that give rise to confusion, here is the procedure that it uses, as described by its Prefect in 1985: 703 Art. 48 — The proper duty of the Congregation for the Doctrine of the Faith is to promote and safeguard the doctrine on faith and morals in the whole Catholic world; so it has competence in things that touch this matter in any way. Art. 51 — To safeguard the truth of faith and the integrity of morals, the Congregation takes care lest faith or morals suffer harm through errors that have been spread in any way whatever. Wherefore: 1. it has the duty of requiring that books and other writings touching faith or morals, being published by the Christian faithful, be subjected to prior examination by the competent authority; 2. it examines carefully writings and opinions that seem to be contrary or dangerous to true faith, and, if it is established that they are opposed to the teaching of the Church, reproves them in due time, having given authors full opportunity to explain their minds, and having forewarned the Ordinary concerned; it brings suitable recourses to bear, if this be opportune. 3. Finally, it takes good care lest errors or dangerous doctrines, which may have been spread among the Christian people, do not go without apt rebuttal. Art. 52 — The Congregation examines offences against the faith and more serious ones both in behaviour or in the celebration of the sacraments which have been reported to it and, if need be, proceeds to the declaration or imposition of canonical sanctions in accordance with the norms of common or proper law. 704 For the International Theological Commission. 705 RATZINGER (Cardinal Joseph), « Entretiens sur la foi », remarks reported by Vittorio Messori, Paris, 1985, Fayard, p. 25/252. 706 AMATO (Mgr Angelo), then secretary of the Congregation for the Doctrine of the Faith, "The Congregation for the Doctrine of the Faith has always been a Tribunal," in Zenit, 1 April 2004. 220 Above all, we encourage bishops and Superiors General to enter into dialogue with the author, if they have not already done so. It is only when we do not clarify things in this way […] that we enter into an explanatory dialogue with the author. Firstly we communicate to him our opinion, developed after the examination of his works, done with the help of various experts. He has the ability to get back to us and lets us know if we have misinterpreted his thinking. After an exchange of letters (and sometimes a series of interviews), we will respond to him by giving him a definitive opinion, suggesting that he lay out all the clarifications from our dialogue in an article.707 In 2015, the Congregation’s disciplinary office recorded 607 cases that met the criteria of Article 10 of the Congregation’s regulations, including: • 518 relating to major crimes, • 43 relating to offenses against the faith, that is to say cases of heresy, apostasy or schism708, • 20 relating to various other problems709. In 2010, the activity report also mentioned 19 cases relating to private revelations. Francis Morrisey710 described a few cases of jurisprudence, relating to hierarchical recourse or to questions asked by bishops to the Congregation for the Doctrine of the faith. They are: • The resumption of the priestly ministry; • The financial situation of laicized priests and their right to pension benefits; • Dismissal from the clerical state for persons with psychological difficulties711. It is surprising to see that of all these cases, only five are the subject of proceedings brought before the Supreme Tribunal, and to our knowledge, none of them was the subject of a judgment in favor of the petitioner: • In 1968, a recourse against a decision of the Holy Office relating to a post-mortem rehabilitation was rejected in limine712. 707 RATZINGER (Cardinal Joseph), « Entretiens sur la foi », op. cit. p. 78/252. According to canons 751 and 1364, heresy is punishable by excommunication. 709 ASS (2015), p. 621. 710 MORRISEY (Rev. Francis G.), « Penal Law in the Chirch today: Recent Jurisprudence and Instructions » in Advocacy Vademecum, edited by Patricia M. Dugan ed. Wilson & Lafleur, Collection Gratianus, Montréal 2006, p. 49-66. 711 The CDF specifies that in this case, it may not be a criminal decision. 712 Prot. 221/68 CA. 708 221 • • • • In 1969, a priest made recourse against a decision of rejection of the congregation in respect to the maintenance of his salary when he had reached the age of 65. This recourse was not admitted to discussion by a decision of the Congress of 17 November 1970, confirmed by the College on 19 February 1972713. In 1987, a priest made recourse against a sentence of excommunication latae sententiae, but the recourse was not admitted to discussion, because the decision had been validated by the Pope, which made it ineligible for any recourse714. In 1989, two recourses were registered against decisions of the CDF, without further clarification as to their nature or their outcome. 715 In 1998, a priest made recourse against a sentence of suspension, but it probably was not admitted to discussion by the Congress of 25 September 2000716. However, the competences of the Congregation, defined in Articles 48 to 55717 of the Apostolic Constitution Pastor Bonus718 are very broad, on top of which it also gives its opinion to the Congregation for the Causes of Saints for the title of Doctor of the Church719, and to the Congregation for Clergy for the approval of catechisms and works of catechetical formation720. In addition, these competences have been expanded by the motu proprio Sacramentorum Sanctitatis Tutela, promulgated on 30 April 2001 by Pope John Paul II, by which sexual abuse committed by a cleric on a minor under 18 years was added to the list of delicta graviora reserved to the Congregation for the Doctrine of the Faith. Without prolonging our discussion unduly, let us remember that the Congregation has the possibility of making extrajudicial decisions pursuant to Article 713 This is the case of recourse Prot. 1123/69/CA made by the Reverend Antonius, 65 years old, who claimed the continuance of his salary, whereas it had declined when he became a priest emeritus. The Congress did not allow the case to enter discussion, and the College confirmed the decision of the Congress. 714 The recourses for which the registration no. is unknown, having been the subject of a decision of the Congress on 28 November 1987. Cf. ASS (1988), p. 1403. 715 The recourses for which the registration numbers are unknown, cited by ASS (1988), p. 1403 and ASS (1990) p. 1203. Prot. 29064/88/CA, having been the subject of a decision of the Congress on 25 September 2000. Cf. ASS (1998), p. 883 and ASS (2000), p. 893. 716 Prot. 29064/88/CA, having been the subject of a decision of the Congress on 25 September 2000. Cf. ASS (1998), p. 883 and ASS (2000), p. 893. 717 Cf. supra. 718 Apostolic Constitution Pastor Bonus, 25 June 1988 (DC 85 [1988] 897-912; 972-983). 719 Cf. article 73 de Pastor Bonus. 720 Cf. article 94 de Pastor Bonus. 222 21 of the norms on the more serious offenses721, which make reference to canon 1270722 or to the sense of canon 1722723 of the 1983 Code, inspired by canons 1956 to 1958 of the 1917 Code. Authors such as Griffin724 have estimated that this canon permits superiors to immediately take precautionary measures for provisionally removing any priest accused of sexual abuse of minors, even before the ordinary has informed him of the accusations and the evidence which will enable him to defend himself, in accordance with canon 1720 n. 1. Canon 18725, however, would justify a contrary position. From a detailed analysis of the sources of canon 1722, John P. Beal believes that the measure of provisional exclusion that is foreseen may be imposed only after a thorough analysis of the situation, since priests retain, before and after being accused, their right to a good reputation (c. 220) and to decent remuneration (c. 282). 721 Art. 21 § 1. § 1. The more grave delicts reserved to the Congregation for the Doctrine of the Faith are to be tried in a judicial process. § 2. However, the Congregation for the Doctrine of the Faith may: 1° decide, in individual cases, ex officio or when requested by the Ordinary or Hierarch, to proceed by extrajudicial decree, as provided in can. 1720 of the Code of Canon Law and can. 1486 of the Code of Canons of the Eastern Churches. However, perpetual expiatory penalties may only be imposed by mandate of the Congregation for the Doctrine of the Faith. 2° present the most grave cases to the decision of the Roman Pontiff with regard to dismissal from the clerical state or deposition, together with dispensation from the law of celibacy, when it is manifestly evident that the delict was committed and after having given the guilty party the possibility of defending himself. 722 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 selfdefense, unless the accused neglected to appear after being properly summoned; 2/ he is to weigh carefully all the proofs and arguments with two assessors; 3/ if the delict is certainly established and a criminal action is not extinguished, he is to issue a decree according to the norm of canons 1342-1350, setting forth the reasons in law and in fact at least briefly. 723 Can. 1722 — To prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist. Once the cause ceases, all these measures must be revoked; they also end by the law itself when the penal process ceases.. 724 GRIFFIN (B. F.), « Canon 1722: Imposition of Administrative Leave Against an Accused”, in Roman Replies and CLSA Advisory Opinions, 1998, p. 103-108. 725 Can. 18 — Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation. 223 1.2. Congregation for the Eastern Churches The competences of this Congregation derive from Articles 41 to 45 of Regimini Ecclesiae Universae, and 56 to 61 of Pastor Bonus726. This Congregation applies and enforces the Code of Canons of the Eastern Churches, and its decisions are the subjects of 30 contentious-administrative recourses, classic cases of exclaustration727 and resignations728 of religious, deposition of a Superior General729, transfers of parish priests730, and remuneration or property rights731. These recourses show that the administrative justice is effective in the Oriental Churches. 1.3. Congregation for Divine Worship and the Discipline of the Sacraments In its scope of competence governed by Articles 62 to 70 of the Apostolic Constitution Pastor Bonus 732, the Congregation for Divine Worship and the Discipline of the Sacraments makes clear reference to its juridic activity. … requests for interpretation, for clarification of liturgical-disciplinary standards, or reporting of irregularities in the field of the sacraments, whether liturgical or disciplinary. These issues are examined and evaluated with a view to being able to offer direction for a suitable solution. […] The competent office has examined and brought to a close cases involving exemptions from priestly obligations, dispensations from irregularities or impediments for candidates for sacred orders, and priestly ordination for permanent deacons or for priests laicized in their time733. 726 Cf. Chapter 2. Prot 19323/87 CA 728 Prot. 22637/91 CA ; Prot. 22638/91 CA ; Prot. 22639/91 CA ; 729 ASS (1980), p. 1029. 730 Prot. 31945/01 CA 731 ASS (1980), p. 1029. 732 Art. 62 — The Congregation for Divine Worship and the Discipline of the Sacraments does whatever pertains to the Apostolic See concerning the regulation and promotion of the sacred liturgy, primarily of the sacraments, without prejudice to the competence of the Congregation for the Doctrine of the Faith. Art. 63 — It fosters and safeguards the regulation of the administration of the sacraments, especially regarding their valid and licit celebration. It grants favours and dispensations not contained in the faculties of diocesan bishops in this matter. Art. 66 — The Congregation provides attentive supervision to ensure that liturgical norms are accurately observed, and that abuses are avoided and eliminated where they are found to exist. Art. 68 — It is also competent to examine, in accordance with the law, cases concerning the nullity of sacred ordination. 733 ASS (2015), p. 640-641. 727 224 Unlike the other Congregations, it appeals to the Catholic faithful to help enforce the law, denounce abuses and make hierarchical recourse in cases which could not be resolved at the local level. Unfortunately, too few of the faithful know about the instruction Redemptionis Sacramentum, on certain things to observe and to avoid concerning the Most Holy Eucharist, of which here is an excerpt: In an altogether particular manner, let everyone do all that is in their power to ensure that the Most Holy Sacrament of the Eucharist will be protected from any and every irreverence or distortion and that all abuses be thoroughly corrected. This is a most serious duty incumbent upon each and every one, and all are bound to carry it out without any favoritism. We are therefore confident that the Congregation will solve new controversies which may occur, in particular about funerals, knowing that the Congregation for the Doctrine of the Faith has published new norms on this matter, of which this is an extract: When the deceased notoriously has requested cremation and the scattering of their ashes for reasons contrary to the Christian faith, a Christian funeral must be denied to that person according to the norms of the law734. The contentious-administrative recourses identified against the decisions of this Congregation are four in number. They are: • The recourse of an American religious against the prohibition of the use of certain elements in a church735; • The recourse of an American layman against a decision relating to the renovation of a parish church736; • The double recourse of a bishop against a change in the name of a church and of a parish737; 734 Instruction Ad resurgendum cum Christo 15 August 2016, on the burial of the dead and the preservation of ashes in case of cremation. 735 Prot 18881/87/CA : recourses of a religious of the Diocese of Miami, against a decision of 30 November 1986, not admitted to discussion by a decision of the Congress of 30 October 1990, confirmed by the College on 8 May 1993. Cf. in particular Ministerium Justitiae, p. 603606. 736 Prot 21024/89/CA : recourse of a layman of the Diocese of Cincinnati, not admitted to discussion by a decision of the Congress of 26 January 1990. Cf. in particular Ministerium Justitiae, p. 461-466. 737 Prot. 29104/98/CA, cited by the AAS (1998) p. 883 and AAS (2002), p. 847 and Prot. 29341/98/CA, cited by AAS (1998), p. 883 and by AAS (2002) p. 849, having been the subject of a decision of the Congress of 22 July 2002, the content of which has not been revealed. 225 • The recourse of a layman against the rejection of an edition of the Roman Missal738. 1.4. Congregation for the Causes of Saints The Congregation for the Causes of Saints, governed by the Articles 71 to 74 of Pastor Bonus, seems little affected by the administrative justice of the Church. The main problem encountered in the field comes from the fact that the causes of the rich and powerful are sometimes better treated than those of the humble and the poor739. We have been witnesses of tension and suffering on the part of the families and friends of the blessed, saints and unsung martyrs. A contribution of Canonists without Borders could possibly be useful in this area to assist in the development of records of postulation in poor countries and for poor people. 1.5. Congregation for Bishops In its field of competence, governed by Articles 75 to 80 of the Apostolic Constitution Pastor Bonus740, the Congregation for Bishops has promulgated individual administrative decrees which have been the subject of 9 contentious-administrative recourses, half of which relate to the diocese of Lleida in Spain, which has been the subject of recourse by bishops about division of property between two dioceses741. 738 Cas non référencé, enregistré en 1989, rejeté in limine, car déposé hors délais. Cf. ASS (1988), p. 1404. 739 Cases not referenced, recorded in 1989, rejected in limine because filed outside of the timelimit. Cf. AAS (1988), p. 1404. It is sufficient to note the distribution of the saints by continent, to the detriment of the poorer countries compared to the rest. 740 Art. 75 — The Congregation for Bishops examines what pertains to the establishment and provision of particular Churches and to the exercise of the episcopal office in the Latin Church, without prejudice to the competence of the Congregation for the Evangelization of Peoples. Art. 76 — This Congregation deals with everything concerning the constitution, division, union, suppression, and other changes of particular Churches and of their groupings. It also erects military ordinariates for the pastoral care of the armed forces. 741 Prot. 29550/98 CA ; Prot. 29550/98 CA B ; Prot. 29550/98 CA C ; Prot. 36517/05 CA ; Prot. 37106/05 CA ; Prot. 37766/05 CA. 226 1.6. Congregation for the Evangelization of Peoples The competences of the Congregation for the Evangelization of Peoples and Propagation of the Faith were the result of Articles 81 to 91 of Regimini Ecclesiae Universae. Becoming the Congregation for the Evangelization of Peoples, its competences are now governed by Articles 85 to 92 of Pastor Bonus. Its decisions have been the subject of 25 contentious-administrative recourses, the majority from priests, following a decision of suspension742, excardination743, transfer744, or loss of the clerical state745. These elements show that justice is operational for the priests in mission, and perhaps a little less for religious, who were the authors of only two recourses, concerning resignations746. On an other hand, we can see that Canonists without Borders receives a relatively large number of inquiries related to administrative ecclesial controversies in Africa, with a much larger proportion than the number of recourses. 1.7. Congregation for the Clergy Blessed Pope Paul VI established the Congregation for the Clergy on 31 December 1967, reorganizing the former Congregation for the Council, of which one decision was the subject of recourse. The responsibilities of the Congregation for the Clergy are the subject of Articles 65 to 70 of Regimini Ecclesiae Universae, then Articles 93 to 98 of Pastor Bonus747. 742 Prot. 45545/11 CA Prot. 41703/08 CA 744 Prot. 24487/93 CA ; Prot. 37521/05 CA 745 Prot. 24604/93 CA ou Prot. 24635/93 CA 746 Prot. 20783/89 CA and case cited in AAS (1989), p. 1218, without registration number. 747 Art. 93 — Without prejudice to the right of bishops and their conferences, the Congregation for the Clergy examines matters regarding priests and deacons of the secular clergy, with regard to their persons and pastoral ministry, and with regard to resources available to them for the exercise of this ministry; and in all these matters the Congregation offers timely assistance to the bishops. Art. 94 — It has the function of promoting the religious education of the Christian faithful of all ages and conditions; it issues timely norms so that catechetical instruction is correctly conducted; it gives great attention so that catechetical formation is properly given; and, with the assent of the Congregation for the Doctrine of the Faith, it grants the prescribed approval of the Holy See for catechisms and other writings pertaining to catechetical instruction. It is available to catechetical offices and international initiatives on religious education, coordinates their activities and, where necessary, lends assistance. Art. 95 — § 1. The Congregation is competent concerning the life, conduct, rights, and obligations of clergy. § 2. It advises on a more suitable distribution of priests. 743 227 Here is an excerpt from its 2014 activity report regarding administrative justice: In the course of 2014, the administrative office of the Congregation for the Clergy has accomplished its work of monitoring the good administration of ecclesiastical goods belonging to public juridic persons748. Decisions are the subject of 353 known contentious-administrative recourses, with the distribution of petitioners as below, when they are known: Priests 61% Laypersons 29% Consecrated Deacons persons 1% 1% Juridical body 4% Bishops 4% It should be noted that recourses relating to the obligations of pious associations are the responsibility of the Congregation for the Clergy, and not of the Council for the Laity749. 1.8. Congregation for Institutes of Consecrated Life and Societies of Apostolic Life The competences of the Sacred Congregation for Religious and Secular Institutes, which later became the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, are defined by Articles 75 to 80 of Regimini Ecclesiae Universae, then by Articles 105 to 111 of Pastor Bonus750. § 3. It fosters the ongoing education of clergy, especially concerning their sanctification and the effective exercise of their pastoral ministry, most of all in the fitting preaching of the Word of God. 748 ASS (2014), p. 722, translated from Italian. 749 Prot 13782/81 CA 750 Art. 105 — The principal function of the Congregation for Institutes of Consecrated Life and for Societies of Apostolic Life is to promote and supervise in the whole Latin Church the practice of the evangelical counsels as they are lived in approved forms of consecrated life and, at the same time, the work of societies of apostolic life. 228 We will not expand on the hierarchical recourses addressed to this congregation, as we have already discussed it in Chapter 6; but we will add some information drawn from its activity report for 2015751: • 73 penalties of administrative acts and dispensations from of canonical or constitutional norms were granted for questions relating to the novitiate, the profession, priestly or diaconal ordination or the governance of institutes at all levels. • 357 questions were assessed, concerning the status, behavior, controversies, and other issues pertaining to consecrated persons, communities and institutes. We have identified 230 contentious-administrative recourses against decrees of this Congregation, with a breakdown by petitioner as follows: Consecrated persons 61% Priests 25% Bishops 6% Juridical body 3% Laypersons 5% 1.9. Congregation for Catholic Education In the activity report for this congregation752, we found no information on the treatment of hierarchical recourses. Yet, our database includes 23 contentious-administrative recourses provisions relating to decrees of the Congregation for Catholic Institutes, which became the Congregation for Catholic Education in 1988. Art. 106 — § 1. The Congregation erects and approves religious and secular institutes and societies of apostolic life, or passes judgement on the suitability of their erection by the diocesan bishop. It also suppresses such institutes and societies if necessary. 751 Example: ASS, (2015), p. 746. 752 ASS 2015 p. 748-765 229 The recourses are essentially about transfers or revocations of missions of teachers753 or rectors754 ; transfers755 and non-admissions to seminaries. One recourse relates to the suppression of a theology faculty756. 2. Recourses to Other Dicasteries 2.1. The Secretariat of State The state of Vatican City has its own judicial bodies and its own gendarmerie which, in 2016, had executed two arrest-warrants and 33 arrests; and from 2013 to 2016, the Tribunal seized more than 12 million Euros, including one million in 2016, after reporting by the Financial Information Authority (AIF)757. The Secretariat of State also intervenes in matters of administrative justice of the Church, insofar as it instructs the administrative recourses referred to the Holy Father, deciding whether to reject or to transmit them to him. The Second Section of the Apostolic Signatura is not competent to deal with appeals against acts of the Secretariat of State, because it holds that decisions of the Secretariat are political acts, not administrative acts758. 2.2. Dicastery for the Laity, Family and Life759 The result of a merger of the Pontifical Councils for the Laity and for the Family, the Dicastery for the Laity, Family and Life has competence in matters depending on the Apostolic See for the promotion of life and of the apostolate of the laity, for the pastoral care of the family and its mission. 753 Prot. 10977/79 CA ; Prot. 27795/97 CA Prot 37707/05 CA; Prot. 30520/99 CA. 755 Prot. 30435/99 CA; Prot. 30520/99 CA; Prot. 32728/01 CA; Prot. 33447/02 CA ; Prot 37707/05 CA… 756 Prot. 30678/99 CA ; Prot. 30677/99 for non-admission to the seminary ; Prot. 22396/91 CA 757 MILANO (Gian Piero), Promoter of Justice, speech at the inauguration of the Judicial Year of Vatican City, 18 February 2017. 758 Prot. 214/70 CA, declaration of the Supreme Tribunal of the Apostolic Signatura, December 28, 1981,cited by Michael Landau, Amtsentbehung… op. cit. p. 321, note 306 759 As of 15 August 2016, the Dicastery combines the competencies of the Pontifical Councils for the Laity and for the Family. 754 230 Its section for families has taken on the competences of the corresponding Dicastery, whose decisions were the subject of only one identified recourse, for the resignation of one of the members of this Council760. Its section for the laity761 took on the activities of the Council for the Laity, for which the activity report mentions hierarchical recourses in response to the consultations of new associations: It has resolved controversies submitted for its consideration by associations of the faithful with administrative recourses762. Its decrees are the subject of 38 identified contentious-administrative recourses, 14 of which were made by the laity, 13 by juridic persons, 3 by bishops, 2 by priests, and 6 have no identified petitioner. An appeal concerning a decree of the Council for the Family was admitted to discussion, but it was subsequently rejected763. 2.3. Dicastery for Promoting Integral Human Development764 The Dicastery for Promoting Integral Human Development, created by the motu proprio of 17 August 2016, comes from grouping four Dicasteries: the Pontifical Council for Justice and Peace, the Pontifical Council Cor Unum, the Pontifical Council for the Pastoral Care of Migrants and Itinerants, and the Pontifical Council for the Pastoral Care of Health Care Workers. We have not identified any appeal against decrees of this Dicastery, nor against those of other pontifical councils; but Cardinal Turkson, Prefect of the Congregation, devoted an entire book to the battle against corruption in the Church and society. Here is an excerpt: In the first place, there is the justice that corruption denies, because it denies freedom. […] For the offense of corruption, which is located in the social sphere, the intervention of the State, which ensures the administration of justice, can and should be provided765. 760 Prot. 18972/87 CA. The Pontifical Council for the Laity is competent in those matters pertaining to the Apostolic See regarding the promotion and coordination of the apostolate of the laity and, generally, in those matters respecting the Christian life of laypeople. 762 ASS (2014), p. 845. 763 Prot 18972/87 CA. 764 As of 1 January 2017, World Day of Peace, the Dicastery combines the expertise of the Pontifical Councils for Justice and Peace, Cor Unum, Pastoral Care of Migrants and Immigrants, and Health Care Workers. 765 TURKSON (Card Peter Kodwo Appiah) Corrosione, Combattere la corruzione nella Chiesa e nella società, Milano Rizzoli, June 2016, 761 231 From our point of view, this recommendation could usefully be applied to the Church, where Pope Francis believes that corruption is not absent, and where an administrative tribunal has been constituted. 2.4. Administration of the Patrimony of the Apostolic See (APSA) The State of Vatican City has its own justice system, of which there are several organs. In accord with canon 1254, the temporal goods of the Church are intended for specific purposes: "to order divine worship, to care for the decent support of the clergy and other ministers, and to exercise works of the sacred apostolate and of charity, especially toward the needy.” Two Secretariats are responsible for property belonging to the Holy See,: the Administration of the Patrimony of the Apostolic See (APSA), and the Secretariat for the Economy, established in 2014. By the motu proprio I Beni Temporali of 4 July 2016, Pope Francis clarified the respective competencies of the two organizations, separating clearly and unequivocally the direct management of the patrimony, and control of this management activity. Nine decisions of this Dicastery have been the subject of canonical recourse, and in at least two cases766, the College has found a violation of the law by the APSA: In case Prot. 22221/90 CA, following appeal 18707/86 Prot CA, the Tribunal ruled in favor of a priest against the Administration of the Patrimony of the Apostolic See (APSA), in considering that there was a procedural defect in a decision relating to the appointment of a Extraordinary Professor767, and it decided in favor of a restoration of the previous situation (restitutio in integrum). Administrative Justice has therefore worked well with this Dicastery. 2.5. Labor Office of the Apostolic See (ULSA)768 In 1988, a recourse against a firing within the Fabbrica di San Pietro was not admitted to discussion769. In 1992, the Supreme Tribunal of the Apostolic Signatura was not considered competent to deal with two recourses filed in 1990 by the Labor Office of the Apostolic See and by an employee of the Holy 766 Prot. 22113/90 CA cited by ASS (1992) p. 1115 et ASS (1993) p. 1272 Prot. 22221/90 CA cited by ASS (1993), p. 1271 et 1272, after recourse Prot 18707/86 CA, 768 This Office was established on 1 January 1989 by Pope John Paul II. It intervenes in matters of labor law for the employees of the Holy See. 769 ASS (1978) p. 625. 767 232 See770. In effect, this agency, which was established on 1 January 1989 by Pope John Paul II, has the characteristics of a Tribunal, with a board of conciliation and arbitration, the decisions of which are not subject to recourse771. Its 2015 activity report shows its juridic activity: Approximately 80 workers turned to the APSA, receiving advice and assistance, with the aim of preventing or solving controversies, thereby helping to improve the workplace climate and the quality of work. In 25 cases, the ULSA offered to collaborate with administrators, in order to contribute to clarifying existing standards. In 10 cases, the ULSA was contacted by retirees or their lawyers, for clarification of institutional obligations. […] Two workers and pensioners submitted a formal request to the Director of the ULSA under Article 11 of its statutes. One, which was declared inadmissible, was connected to a recourse to the College of Conciliation and Arbitration of the ULSA. The other was declared closed, as a result of the abandonment on the part of the person concerned772. 2.6. The Roman Rota Article 126 of Pastor Bonus qualifies the Roman Rota as a court, which mainly issues judgments subject to recourse to the Supreme Tribunal, in accord with Article 122 of Pastor Bonus which is beyond the scope of our study. It also issues administrative acts concerning alimony, which have been the subject of several contentious-administrative recourses, cited in the activity reports of the Second Section773. 2.7. The Apostolic Signatura It can be observed that Article 121 of Pastor Bonus employs the term “Dicastery” with regard to the Apostolic Signatura, confirming the fact that it is both a court and an administrative body. In this regard, we will consider to be “administrative acts” those decisions of the Second Section not to admit some recourses to discussion. These decisions are indeed subject to recourse to the College of the Second Section, and they are also an important part of the recourse, even if the publications of the Tribunal pass over them in silence: 770 Prot. 22046/90 CA et 22583/91 CA cités par ASS (1992) p. 1116. Decision of the Congress of 28 November 1992. 771 Cf. Statutes of the Organization: www.ulsa.Va/content/ulsa/it/Chi siamo/Statuto1.html. 772 ASS (2015), p. 1093, Translated from Italian. 773 For 116 cases, we have been able to identify the Dicastery of origin. 233 • • The activity report that it prepares each year for the Acta Apostolicae Sanctae is silent on the fact that many of the decrees of the Apostolic Signatura are the subject of recourse to the College of Fathers, preferring instead to indicate the Dicastery of origin for those decrees not admitted to discussion; The compendium of case law of the promoter of justice of the Tribunal774 indicates recourses against the decisions of the Congress of non-admission to discussion; but it suggests that recourses against the decisions of the Congress would not have been admitted to discussion by the College, while the College reviewed and confirmed the decision of the Congress not to admit them to the discussion. In light of our database, we will consider that the College has given a negative response to the recourse, asserting that there is no violation of law in the decision of the Congress. Finally, our database reports 122 recourses to the College of Fathers against decisions of the Secretary or the Congress of the Second Section775, a fact which shows that the possibility of recourse is not an empty word. Nevertheless, the low number of recourses accepted776 prompts a question that we will discuss in the third Part of this book. Training Session at the ecclesial court of Cotonou 774 MONTINI (Gian-Paolo), Conspectus decisionum, Periodica 103 (2014) 27- 66: « De recursus adversum decretum rejectionis a Congressu latum. Recursus non admittitur ad disceptationem » 775 For 116 cases, we have been able to identify the Dicastery of origin. 776 Prot. 12300/80 CA ; 22113/88 CA ; 23443/92 CA ; 23444/92 CA ; 23445/92 CA ainsi que deux cas cités par ASS (1981) p. 951 et ASS (1989), p. 1218. 234 Third Part: Commentary 235 In the first part, we outlined the context of administrative justice of the Church, and in the second part, we observed the practice of this justice in the various situations of ecclesial life. It is now time to take a step back and allow room for commentary, in order to assess the extent to which the objectives set at the time of the Council have been achieved, and to propose directions for developments in the future. Chapter 9: A Look Back on 50 Years of Procedure The strengths and difficulties of administrative justice get a hard look, under the light of 50 years of practice. This chapter proposes to revisit each of the stages of procedure, and to comment on the points which raise difficulties for the Catholic faithful wishing to recourse to the administrative justice of the Church. Chapter 10: Conciliation and Mediation Although hierarchical recourse and contentious-administrative recourse have occupied most of this book, they should not represent the only solutions to the resolution of conflicts resulting from the administrative power of the Church. It seems important to us to devote a chapter to "mediation and the efforts of wise men," proposed by canon 1733 §1 to avoid conflicts. Chapter 11: Prospects of Developments Canon 212 § 3 invites the faithful "to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful." Such is the purpose of this chapter, which proposes a few paths of evolution for administrative justice of the Church. Chapter 12: Final Remarks In writing this book, and by creating Canonists without Borders the author expresses his intentions, to allow the reader to draw his own conclusions more easily. 237 120ème birhthday of the Memni Parish in Côte d’Ivoire 238 Chapter 9: Return to Procédure In Chapter 2, we presented the principles and organization of administrative justice, with applicable procedures. In subsequent chapters, we observed justice in action, in various areas of ecclesial life. We found that, in the exercise of his right to petition, petitioner meets with resistance comparable to that which the Holy Father described, regarding reform of the Roman Curia: In this process, it is normal, and indeed healthy, to encounter difficulties, which in the case of the reform, might present themselves as different types of resistance. There can be cases of open resistance, often born of goodwill and sincere dialogue, and cases of hidden resistance… typical of those who say they are ready for change, yet want everything to remain as it was before. There are also cases of malicious resistance, which spring up in misguided minds and come to the fore when the devil inspires ill intentions…..This last kind of resistance hides behind words of self-justification and, often, accusation; it takes refuge in traditions, appearances, formalities, in the familiar…777. Strengthened by this experience, we can now revisit the procedure, from the angle of procedural law, analyzing the way in which the different steps of the procedure play out, and then examining cross-cutting aspects. 1. Stages of the Procedure Canon 1491 specifies that every right is protected by an action that is to say by the power granted to the faithful to make recourse to the courts to ask for legal protection; and by an exception allowing the defendant to assert his point of view. We shall discuss and comment on the various steps of the procedure of administrative recourse here: 1. The preliminary stages, with the initial decree containing the administrative decision, the ex gratia recourse to administrative authority, the hierarchical recourse(s) up to the Roman Curia; 2. Contentious-administrative recourse with its registration, its decision of admission to discussion, the decision of the Congress, the definitive ruling of the College and the ends of the controversy in the course of the procedure; 3. Incidental and related cases, as well as complementary rulings, such as the suspension of the act, reinstatement or the repair of damages. 777 FRANCIS (Pope): Presentation of Christmas Greetings to the Roman Curia, 22 December 2016. 239 1.1. The Preliminary Stages The first stages of justice are constituted by the adoption of the administrative act, then by ex gratia recourse, and finally by hierarchical recourse. 1.1.1. The Initial Decree Several authors have addressed the pathology of administrative acts, and among them, Paolo Gherri778 distinguishes three main kinds, subject to cause harm to their recipients: • Illegal acts, which contradict a law and that it should not be carried out, at the risk of losing one’s own rights779; • Illegitimate acts which do not directly violate an existing law, but which do not implement all its provisions, or are distorted by external pressure, ignorance or error780; • Other fraudulent acts which, although consistent with the law, result in inconvenience or difficulties of more or less importance for the one affected781. It is clear that the first category of acts is subject to recourse, while the third is not. The situation is more ambiguous for the second category of acts, for it is not always easy to prove that they are illegitimate. By relying on canon 1491, Arroba recalls that certain rights may not be protected by actions if the act expressly says so. Regarding our subject, let us seek to identify situations where fraudulent administrative acts are not subject to recourse, and therefore to which the justice of the Supreme Tribunal does not apply. We will examine three. The first exception, cited explicitly in canon 1732, is that of acts placed by the Roman Pontiff or an Ecumenical Council. The doctrine specifies what we are dealing with in reality: With regard to acts placed by the Roman Pontiff, the doctrine considers comparable to them the acts of the Secretariat of State; however, they not actually become acts of the Roman Pontiff if they receive approval in forma communi; these are the ones that we can read a report 778 GHERRI (Paolo), « Petitio, remonstratio, exceptio : cenni esploratovi sui modi di nonesecuzione degli atti amministrativi singolari ». Ius Ecclesiae, XXVII, 2015, p. 339-356. 779 He cited the example of a parish priest who received a verbal announcement of a transfer, without receiving any written confirmation. 780 Cf. c. 125, 126 et 149. 781 GHERRI (Paolo) referred to the example of the assignment of a parish priest to a role for which he believes he does not have the necessary skills. 240 of, at the end of a good number of decisions of Dicasteries of the Roman Curia782. We have found that such decisions sometimes cause misunderstandings, protests and suffering when they occur without the person concerned having been able to defend himself against the accusations with which he is charged. Philippe Toxé expressed the hope that the Holy Father and his Curia do this sparingly and with caution. In practice, it would be helpful if the Holy Father could ensure that the rights of the faithful have been respected, in the decisions that Dicasteries propose to him, and in particular those of the Congregation for the Doctrine of the Faith, before approving them in forma specifica. A second exception is the result of laws and general decrees which infringed upon the rights of one or several of the faithful, and which are excluded from the scope of recourse, to the extent that they are not individual decrees. As we have seen in the case of the association "Call to Action Nebraska,” there are cases where the ecclesiastical hierarchy promulgates general decrees applicable to all members of an association. To know if recourse is possible or not, Dominique Letourneau783 quoted differing points of view, between which we will not decide. Some believe that: In the current state of the law, no path is offered to the faithful whose rights would be violated by a general law or by a general decree. No canonical provision allows a person to argue its invalidity784. Others, on the contrary, claim that: Binding general decrees could be the subject of hierarchical recourse785. A third exception is that of decrees that are not written, or at least not published. These deserve a more detailed discussion, because likewise in this case, authors do not agree completely on the nature of these acts and, a fortiori, on the possibility of contesting them. With the definition he provided, Pedro Lombardia held that these are administrative acts, despite their noncompliance with the requirements of canons 37 and 51: An administrative act in the strict sense is a manifestation of will, judgment, knowledge or desire of a ecclesiastical authority toward its recipient, which must be written, even if this form is understood as a 782 THERIAULT (Michel), « Le beneficium novae audientiae dans la procédure de recours hiérarchiques contre les décrets administratifs » in Studia canonica (1995), p. 88, Translated from French. 783 LE TOURNEAU (Dominique), Droits et devoirs fondamentaux des fidèles et des laïcs dans l’Église, Montréal 2011, Wilson et Lafleur p. 227/396 p. 784 GROCHOLEWSKI (Card ; Zénon), « Atti et ricorsi amministrativi », 57 (1984), 259, cited by Dominique LE TOURNEAU, op. cit. p. 227/396. 785 GROCHOLEWSKI (Card ; Zénon), « Atti et ricorsi amministrativi », 57 (1984), 259, cited by Dominique LE TOURNEAU, op. cit. p. 227/396. 241 grave obligation of authority to ensure its legal security, and not as a condition ad validitatem. Conversely, Sergio Aumenta believes that they cannot be considered as administrative acts: It is possible that the rights of a member of the faithful could be denied without there existing, on the part of authority, a decision in good and due form which can be qualified as an administrative act and, therefore be the subject of recourse. This is the case, for example, when, while having taken an administrative act, an authority has not notified the person concerned786. Ulrich Rhode tries and explain this considering that many unwritten decrees – as for instance the case of a priest refusing someone as a godfather for a baptism, or a local Religious Superior forbiding a professed to take his final vows - have no reason to be written down as they would be taken beyond the exercise of the executive power of the government, stricto sensu. In practice, the question is whether and how a member of the faithful can prove that the act exists, and how he can make recourse. Again, the points of view are varied: • Paolo Gherri recommended not to execute the act and to address an ex gratia recourse in the form of an exceptio, by arguing the canonical exception provided for in canon 1491787. The difficulty is that sometimes these illicit acts within the meaning of canon law have civil effects788; • Some petitioners have made recourse to the Supreme Tribunal by relying on canons 57 or 1735, knowing that silence for one789 or three790 months makes it an administrative decision; • Counsel Martha Wegan recommended that the affected person abandon the procedure, considering that it would be too difficult to win the case in question791. 786 AUMENTA (Don Sergio), op. cit. p. 127. Can. 1491 — Every right is protected not only by an action but also by an exception unless other provision is expressly made. 788 Such is the case of Ms. O., whose duties as chaplain the bishop asked the director of the hospital to terminate. Even though she never received the decision of the bishop, she was fired by the hospital with loss of salary. The Court of Recourses of has found that the Director of the hospital was correct in firing her, if the bishop did not extend her mandate any longer. (Administrative Court of Recourses of Nancy, 1st Chamber, of 28 September 2006, 04NC01127, unreported in the ECR Lebon). 789 Cf. c. 1735 790 Cf. c. 57. 791 Cf. e-mail from Martha WEGAN of 20 December 2012: No comment.— : No comment. - Sie werden nie eine Antwort bekommen. Sie haben ganz einfach keine Legitimatio activa um solche 787 242 • Ulrich Rhode mentions four alternative routes for a faithful to defend his rights as guaranteed by canon 221 §1: An intreprétation that would deny the application of canon 1732 for the acts taken beyond the exercice of the Governing power should indicate another way to contest them. Four alternative routes are possible: o The classical judical way; o The legal remedies provided under the particular law or the proper statutes; o The legal remedies provided by the rules allowing an administrative decree; o The application of canons 1732 à 1739 per analogy792. The situation of the sister of Niger, referred to in Chapter 6, shows the complexity of the calculation of time limits, since she returned to her convent in May 2016, while the General Superior declared that she would send a letter several times, but actually sent it only six months later. Even if Article 73 of the proper law provides for the case where the petitioner may not be able to provide the administrative act which he is challenging, we do not have knowledge of recourses filed against a non-written act which have been admitted to discussion. Anne Bamberg goes in the same direction, stating that the absence of a formal act constitutes an additional handicap for its revocation: It is very rare that the faithful can obtain justice in the face of abuse of power by authority, when confronted by an act or worse, by the absence of an act, that they feel adversely affects their rights793. 1.1.2. The Ex Gratia Recourse From his categorization of fraudulent acts, Paolo Gherri recommends that in all cases an ex gratia recourse, but he distinguishes three specific forms: the petitio, for legitimate acts; the exceptio, for acts considered illegal; and the remonstratio, for acts deemed illegitimate, which for the most part regard canons 1732 to 1734 and are most likely to be the subjects of an administrative recourse. Beschwerden als Klage einzubringen. Bitte beachten Sie unseren Schriftverkehr als beendet. Frohe und Gesegnete Weihnacht! 792 RHODE (Ulrich), “Attività amministrativa svolta senza esercizio di potestà di governo” in Periodica 106 (2017° 359640. 793 BAMBERG (Anne), « ET60 Autour de recours, Décisions judiciaires et administratives », Université Marc Bloch, Strasbourg, 2006. 243 The term [remonstratio] is not found in the Latin Code, but it is used in jurisprudence to indicate a request for revocation or amendment of a decree mentioned in Canon 1734794. As we will see later on, the path of dialogue is important, but if the other party is not cooperative, one needs to know how to put a term in passing to the procedure of hierarchical recourse during the period when it is permitted, that is to say in the fifteen days following the last reply subject to confirm the administrative act. Such is also the point of view of Labandeira: If one wants to ensure justice in the Church, we must not confound the path of favors—in volontes and potentes—with the administrative channel. It will always be possible to request a favor from authority, but justice has some very specific requirements. Undisciplined powers go off to arbitration, and harm the public as well as the private good. It is not good to defend excessively the principle of dialogue, which, as we know, and as is repeated regularly in the conciliar documents, is extremely necessary in human relationships, in communication, in the search for consensus on the issues subject to debate, and not only, within certain limits, in the search for the truth795. 1.1.3. Hierarchical Recourse The law in force is the result of canon 1737, which instructs the petitioner to address the hierarchical superior of the one who placed the act. Once the superior is identified, and the response obtained, or his silence persists for thirty days, one ought in general to make recourse within fifteen days to the Dicastery concerned, whose decision is a prerequisite to any contentious-administrative recourse. In practice, it is difficult to know the number and effectiveness of these recourses, and so we will refer to the specific inquiry conducted in the United States by James H. Provost on hierarchical recourses addressed to the Roman Curia between 1 January 1969 and 31 December 1984, relating to administrative acts. Of the 181 bishops contacted, 142 responded to the survey, or 78%. They have been involved in 36 hierarchical recourses to the Curia, and 3 contentious-administrative recourses to the Supreme Tribunal. This number is low, which according to the author reflects a lack of understanding of the procedure by priests, and a fortiori by the faithful. We will add the fact that a hierarchical recourse of a priest or a religious can be considered by his superior as an act of disobedience, which creates a sort of irreverence regarding a 794 DANIEL (William), Ministerium Justitiae, op. cit. p. 359, note 2. LABANDEIRA (Eduardo), Trattato di diritto amministrativo canonico, Milano 1994, p. 221222. 795 244 possible recourse, even when the path of dialogue has not helped to resolve the conflict. Once the decision is made to take hierarchical recourse, the choice of the competent Dicastery is based on Article 19 of Pastor Bonus: "The hierarchical recourses are accepted by the Dicastery competent in the matter….” It therefore does not depend on the nature of the petitioner or on the author of the act, but on the material being processed. To choose the competent Dicastery, one should check Pastor Bonus for the competences of the Dicasteries potentially concerned, and in case of doubt, it is possible to apply to several Dicasteries. It may be that a conflict of competence arises between two Dicasteries, in which case the Supreme Tribunal is called upon to decide: The Holy Father dismissed a cleric from the clerical state. The diocese informed him that as a result of his dismissal, he is no longer eligible for any financial support or benefits from the diocese. The cleric asked the bishop to reconsider his decision to end all sustenance because of the former’s age and condition. Because the bishop did not reply, recourse was made to the Congregation for Clergy. The latter replied that the Congregation for the Doctrine of the Faith was competent to hear the case. The Apostolic Signatura was asked to resolve the conflict, also because the Congregation for the Doctrine of the Faith claimed that it was not competent to handle the recourse. The Congress of the Apostolic Signatura resolved the case and decided the Congregation for Clergy was competent since the Congregation for the Doctrine of the Faith had already handled the case and proposed a dismissal from the clerical state796. 1.1.4. The Statement of the Dicastery Article 136 of the rules of the Roman Curia requires the Dicasteries to resolve the dispute within a period of 90 days, unless the Dicastery does a thorough investigation, which is quite rare. Although the Dicastery is free to order a further investigation of the case, the usual practice is to resolve the recourse on the basis of the information contained in the record of the decree concerned797. The competence of the Dicastery goes further than that of the Apostolic Signatura, since it can judge not only the legitimacy of the act, but also its merits. 796 Cf. MARTENS (Kurt), The Jurist 69 (2009), p. 680. This case does not appear in the database, because it is not an administrative dispute, but rather a conflict of competence. 797 MARTENS (Kurt), « Protection of Rights: Experiences with Hierarchical Recourse and Possibilities for the Future », The Jurist 69 (2009) p. 666. 245 Once the recourse has been reviewed, the Dicastery may, under canon 1739, either reject it by confirming the administrative act, or accept it. In this case, it can declare the illegitimacy of the administrative act concerned (irritum declarare), or annul it (rescindere, revocare), or change it in whole or in part (emendare, subrogare, obrogare), including, if applicable, an obligation to repair the damage from the act found to be illegitimate. Let us recall that the decision of the Dicastery is a condition sine qua non of contentious-administrative recourse, knowing that, here too, a silence for thirty days is equal to a refusal. When it is communicated, the decision of the Dicastery includes a statement indicating that it is subject to recourse to the second section of the Supreme Tribunal. With regard to the effective processing of hierarchical recourses by Dicasteries, it is not easy to determine by reading activity reports or the proper laws of the Congregations798, which are in general silent on this point. However, it is possible to obtain an estimate from the results of the investigation of James Provost cited previously: • One third of the cases have been addressed in less than six months, other have taken longer, which has caused pastoral problems in the dioceses, and still others have been treated in a manner deemed too expeditiously: • In 20 of 26 cases (77%), the Curia has confirmed the decision of the bishop, while it has modified it in 6 cases out of 26 (23%); • Generally, the trial was considered fair, and only once the petitioner had recourse to civil justice (4%), as opposed to three times in the Supreme Tribunal (12%); • The respect of procedures by the bishop is a point considered in detail by the Curia, knowing that it has also taken account of the equity of various solutions; • The personal appreciation of the instructor of the case has a great influence on the result. This important work of the Dicasteries ought in our opinion to be better known. 1.2. Contentious-Administrative Recourse Various authors have addressed this part in detail, but they have generally based their work on the special norms published on 23 March 1968. To make this information more accessible to readers, it is appropriate to update this work, starting with writings dated after 2008 and/or commenting on the proper 798 According to James PROVOST, the Congregations very rarely publish procedures, with the exception of the Congregation for the Doctrine of the Faith. 246 law of the Tribunal, published in Latin on 21 June 2008, and in French in 2016. Let us recall first of all that contentious-administrative recourse must be made in writing within a peremptory period of sixty useful days799, and it must contain the information required by Article 73 of the proper law: Art. 73. § 1. The recourse must mention: 1° by whom it is presented; 2° the act which is being challenged; 3° what is requested; 4° on what legal element it is based; 5° the day when the notification of the contested act was received; 6° the signature of the petitioner. § 2. To the recourse must be attached: 1° the act which is challenged, unless the petitioner cannot do so; 2° the mandate regularly entrusted to an advocate-procurator, or the request, with supporting documentation, for obtaining free representation. 1.2.1. The Preliminary Decision of Admissibility Once the recourse has been filed, one normally receives a registration number; but the petitioner is not always informed, and so he must sometimes insist that he be told what has become of his recourse. He can then receive a letter from the Tribunal, informing him of the registration number of his file and of the progress of the procedure (for example the transmission of the file to the Dicastery concerned). After its registration, the recourse is the subject of a first formal examination as to whether it is admissible. If not, it is the object of a rejection in limine in accord with Article 76 of the proper law: Art. 76. § 1. The promoter of justice having been heard, the Secretary rejects in limine, by issuing a decree, the recourse which unquestionably and obviously lacks some element that is required: 1° the question is not within the competence of an administrative Tribunal; 2° the petitioner does not have the legitimate ability to stand in judgment; 3° the act that is said to have been violated does not exist; 4° the deadlines to submit the recourse have passed. 799 Pastor bonus had initially set a deadline of thirty days for the faithful, and ninety days for the Dicasteries. Article 34 of the 2008 proper law sets a deadline of sixty days for everyone. Authors such as Sergio AUMENTA develop the question of deadlines (op. cit. p. 158 and ff.) 247 § 2. Concerning this decree, the secretary shall inform the promoter of justice and, where appropriate, the competent authority. § 3. The party who makes recourse is informed by the same decree that he has the faculty to make recourse to the Congress within 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 subject to no legal recourse. In practice, the reasons for rejections in limine are the following: • Uncertainty of the persons or the object in question800; • Petitioner without acknowledged legal capacity, knowing that the legitimacy of a plaintiff to file a contentious-administrative recourse is the subject of important doctrinal debates801; • The matter is not dependent on the competence of the second section802; • The decree was contested prior to 1 March 1968803; • The contested decree does not come from a Dicastery804; • The recourse was filed after the time-limit had expired805; • Foreseen expenses were not paid within the time limits, when the petitioner had not demonstrated his inability to pay806; • Absence of the designation of an advocate-procurator within the allotted time807; • Non-existence or non-identification of the law that is said to have been violated808. In accordance with Article 77 of the proper law, the Tribunal sometimes gives a deadline to correct a mistake, rather than rejecting the recourse in limine: 800 Article 75 of the proper law speaks of a complete uncertainty, while Article 107 of the Special Norms indicated that the recourse is null and void if it lacks a signature, or if there remains absolute uncertainty about the persons, or the purpose of the recourse. 801 It should be noted that under c. 1476, even the non-baptized can have legal standing. Cf. AUMENTA, op. cit., p. 132. 802 For example, if the decree of the Congregation has been approved by the Holy Father in forma specifica. 803 For example, the 10 May 1968 decision of the Congress relating to case Prot. 223/68 CA, and those of 21 May 1968 relating to cases Prot. 221/68 CA and Prot. 224/68 CA. 804 For example the decision of 2 March 1969 relating to case Prot. 252/69 CA. 805 For example, the May 3, 1984 decision of the Prefect, relating to Paris case Prot. 14997/83 CA. 806 For example, the May 5, 2014 decision of the Prefect, relating to case Prot. 48240/13 CA. 807 For example, the 21 January 2014 decision of the Prefect, relating to case Prot. 48204/13 CA. 808 This formulation is that of article 76 of the proper law. It would be interesting to know how it is interpreted. 248 Art. 77. With the exception of Art. 16, § 2, the secretary shall fix a deadline to resubmit the recourse, if it contains defects which can be remedied. Despite this flexibility, we saw in the preceding chapter that a large number of recourses have resulted in a rejection in limine even before an examination of evidence has been carried out, inasmuch as the instruction cannot begin before the joinder of the issue809. This situation is justified by Laurent Dabiré: In a general way, the exercise of any right in the Church is submitted to the moderation of ecclesiastical authority under the terms of c. 223 §2810. Thus the right to legitimate defense of personal rights ceases to be such if its exercise does not respect the duty of communion (c. 209, §1), or other just limits which are derived from the rights of others in the Church (c. 223 §1) 811. Similarly, Professor Maria Blanco explained that the rights of the faithful are limited by the obligation of maintaining communion812. This limitation seems to us particularly sensitive when the evidence is held by the administrative authority, and the petitioner has not had communication. In the case where his recourse would not be admitted to discussion, the petitioner has the option of making recourse to the College under Article 81 of the proper law, or also to recourse to the Holy Father, as in the following example: In case Prot 18061813, Sister Monica was subjected to a rejection in limine on 11 December 1986, but on 11 January 1987, she addressed for the third time a recourse to the Supreme Pontiff, asking for a full review of her recourse. The Cardinal Secretary of State relayed Sister Monica’s request to the Tribunal, and the College of Judges ruled on 5 May 1990, confirming the absence of a basis for her request, after having reviewed the merits of the case. 809 The joinder of the issue takes place when, by a decree of the judge, the terms of the dispute are defined from the requests and responses of the parties. Cf. cc. 1513 and 1529. 810 C. 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. 811 DABIRE (Mgr Laurent), L’accès à la justice dans l’Eglise et dans l’Etat au Burkina Faso, Rome 2005, Pontificia Università Lateranense, p. 125/224. 812 BLANCO (Prof. Maria), Universita di Navarra, "Libertà dei fideli e gerarchica nell'armonia tra i diritti dei fideli e the communion ecclesiale,” 16th Congress International Consociatio, Rome, 6 October 2017. 813 Ministerium Justitiae, op. cit. p. 255-274. 249 1.2.2. The Decision of the Congress If the recourse has not been rejected in limine, the Secretary begins the instruction, in accord with Article 79 of the proper law: Art. 79. § 1. With its decree, the secretary 1° orders that notification be made of the recourse received, to the competent Dicastery and to all those who legitimately intervened before it, and he asks them to constitute an advocate-procurator by a legitimate mandate; 2° asks the Dicastery to transmit, within a period of thirty days, a copy of the contested act and of all acts concerning the controversy; 3° names a promoter of justice in the case; 4° directs the Chancery to indicate to the party who makes recourse and to all those mentioned in n. 1 what they must accurately do. § 2. Making the necessary adaptations, the secretary shall proceed similarly with those who are potentially affected. The work of Michael Landau, quoted on several occasions, shows that in the course of instruction, the Secretary of the Apostolic Signatura frequently sends letters to the parties to explain the procedure, and help them to carry it out. Once the procedure laid down in Articles 79 to 82 is executed, the Congress makes a decision to admit or not admit the recourse to the discussion of the Cardinals gathered within the College. Art. 83. § 1. The Congress being convened according to the norms of Art. 40, the Prefect decides if the recourse should be admitted to discussion, or if it should be rejected because it is clearly lacking in foundation or presupposition. In practice, and taking into account the special norms in force between 1988 and 2008, the reasons for rejections by the Congress are the following: • The act of the administrative authority is not regarded as an administrative act814; • The act of the administrative authority is not a specific act815; 814 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, 1997, p. 144. Pontifica università lateranese, 1997, p. 144. Certain acts of administrative authority are not individual administrative acts, such as, for example, political acts by the Secretariat of State, or doctrinal decisions of the Congregation for the Doctrine of the Faith. 815 The decrees governed by canons 29 and 30 are excluded from administrative remedies, although they can be submitted for review to the Pontifical Commission in accord with Articles 157 and 158 of Pastor Bonus. The decrees mentioned in canons 31 to 33, and the instructions governed by canon 34, are subject to recourse only to the extent that they are contrary to a subjective right of a member of the faithful. Authors such as Labandeira believe that general 250 • • The contested decree has been revoked816 or abandoned817, or the dispute has been ended by a specific arrangement818 or for a reason not specified819 ; The transmitted documents are insufficient to justify the recourse, which thus lacks foundation820. Sometimes some of the cases are the subject of two, or even three or four successive examinations in Congress, particularly when there are incidental cases, as we will see later: Case Prot 37050/05 CA was the subject of examination by the Congress on 4 May, 27 June and 7 December 2007, as well as March 14, 2008821. Finally, the recourse was admitted to discussion by the College. 1.2.3. Recourse to the College of Fathers Article 84 of the proper law provides for the possibility of recourse in the case of a rejection of the recourse by the Congress. This procedure is well known to petitioners, because it is the subject of a reference affixed to the bottom of decisions by the Congress. There are also many cases of recourse to the College which are the subject of a decision, or are abandoned in the course of the procedure as in the following case: On 31 October 1970, the Congress decided not to admit to discussion recourse Prot. 124/69 CA. The priest petitioner made recourse to the College against this decision, but did not pay the costs of the trial by the deadline. Therefore, on 9 July 1970, the Tribunal considered that he had abandoned the proceedings. In practice, this type of recourse has worked at least once, on 11 November 1972, as evidenced by Giuseppe Lobina concerning case Prot 2855/72 CA: administrative acts may be the subject of contentious-administrative recourse by someone if one of his fundamental rights is directly injured (Labandeira, Trattato di diritto amministrativo canonico, Milano 1994, p. 265.) 816For example, the 16 December 1971 decision of the Prefect, relating to case Prot. 17937/86 CA. 817 For example, the 23 April 2001 decision of the Congress, relating to case Prot. 29550/98 CA 818 Article 78 of the proper law notes: Art. 78. § 1. At any stage of a trial, an end may be put to the dispute, by the passage of a deadline, or by the revocation of the contested act, or by the withdrawal of the complaint, or by a peaceful arrangement. 819 For example, in the 28 March 1996 sentence of the Congress about case Prot. 24693 CA. 820 For example, the May 4, 1996 decision of the Congress relating to case Prot. 25500/94 CA. (Quia ipse caret praesupposito, necnon subordinate manifest quia caret fundamento.) 821 Cf. AAS (2007) p. 739, 740, 742 et AAS (2008), p. 615. 251 It may be noted that this is the first case in which the eminent College reforms a decision of the Congress and admits to discussion a recourse previously rejected by the Congress822. This could have been followed by another favorable decision, 24 November 1973, relative to case Prot. 2973/72 CA, but this possibility then evaporated, as indicated by Cardinal Daneels: In the 19 years that I have been working in this Court, I do not know a single case in which the College has reformed the decision taken by the Secretary in Congress not to admit a case to discussion. But I remember a case in which the College we has blamed for having too readily admitted a case to discussion823. In this regard, lawyers respectful of their clients currently discourage introducing such a recourse, because it has every chance of receiving a negative response. 1.2.4. The End of the Dispute Article 78 of the proper law provides for the possibility of concluding a dispute by decision of the Secretary or the Congress: Art. 78. § 1. At any stage of the trial, an end may be put to the dispute by the expiration date, or by the revocation of the contested act, or by renunciation of the case, or by a peaceful resolution. § 2. A peaceful resolution made between the parties requires the approval of the Congress. § 3. In other cases of litigation that has been completed, the secretary issues a decree in the matter, communicating it to all those who are involved. In practice, one does meet with resolutions of disputes at every stage of the process, but the cases mentioned are of two different types. In effect, in the case of renunciation or of peaceful resolution, we can say that the petitioner is satisfied. In contrast, in the case of renunciation or expiry, the situation can come about, not through a desire to put an end to the dispute, but rather through a lack of means to fulfill within the prescribed time limits the obligations imposed by the Tribunal, such as: • The deposit of an advance for the payment of costs of proceedings; • The presentation of a mandate to a lawyer, which requires an agreement to have been made on the price acceptable to the two parties; 822 LOBINA (Guseppe), « Rassegna di giurisprudenza della setio altera », ME (1973), p. 305. DANEELS (Card. Franz), “Il contenzioso-amministrativo nella prassi”, in La giustizia nell’attività della chiesa : il contentioso-amministrativo, Roma 2006, Giuffrè editore, p. 308. 823 252 • The sending of depositions, and the length and difficulty of the process, which leads to discouragement. Conversely, the possibility of concluding a process by expiry should be viewed as an advantage, as it prevents them from dragging on for a long period of time824. The literature cites a few examples of recourses concluded in the course of the procedure, but it is normal that the Supreme Tribunal does not choose to publish them all, preferring to publish cases where the jurisprudence is more informative. The general database does not give a statistically correct idea of the number of recourses concluded in the course of the procedure, and so it is necessary to refer to the comprehensive surveys conducted on cases of jurisprudence, as we will see below in the statistical section. 1.2.5. The Final Decision of the College After the recourse is admitted to discussion, the procedure continues in accordance with Articles 85 to 89 of the proper law. The College next issues a final decision, then the petitioner receives a copy of the decision, written in Latin. Normally, this mailing takes place a little after the decision, but this is not always the case: In case Prot 19187/87 CA, the decision of the College is dated 26 June 1991, whereas the decision was sent to the petitioner on 4 October 1991825. In accord with Article 91 of the proper law, the petitioner may still request reintegration, or file a complaint of nullity; otherwise the decision becomes enforceable. Once the final decision is received, the same Article 91 specifies the only actions that it is possible to bring against a decision of the College. Art. 91. § 1. Against the decisions of the College, the nature of the Supreme Tribunal being however always respected, there remain only recourses of complaint of nullity and of reintegration. § 2. If applicable, the prefect can immediately refer the case to the College of Judges. Some authors, like Michel Thériault, consider that it is also possible to request the benefit of a new hearing, in accord with the general regulation of the Roman Curia of 4 February 1992826, subject to submit new elements827. 824 DANIEL (William), « Brief Note on Abatement in a Contentious-Administrative Trial », The Jurist, 75 (2015), p. 248-252. 825 Prot 19187/87 CA, ASS (1991) p. 1306. 826 AAS, 84 (1992) p. 201-207. 827 THÉRIAULT (Michel), « Le beneficium novae audientiae dans la procédure de recours contre les décrets administratifs » in Studia canonica (1995), p. 97, translated from French. 253 With regard to recourse to the Roman Pontiff, provided for in c. 1417, it is the subject of instruction by the Secretariat of State, which decides in each case either to present it to the Holy Father, or to have it reexamined by the Tribunal. 1.3. Related Cases and Their Effects We have discussed the simplest case, where an administrative act is the subject of a single decision. There are, however, cases where the recourse has other requests resulting in several decisions, namely: • An incidental case; • A related case; • Immediate suspensive effect of the administrative act; • Restoration of the previous situation; • Repair of damages. 1.3.1. Incidental and Related Cases Canon 1587 defines the incidental cases for the ordinary contentious case, while canons 1588 to 1591 specify the modalities. Can. 1587 An incidental case arises whenever, after the trial has begun through the citation, a question is proposed which nevertheless pertains to the case in such a way that it frequently must be resolved before the principal question, even if it was not expressly contained in the libellus which introduced the litigation. A similar example is found in contentious-administrative proceedings with incidental cases, such as in the case of simultaneous recourse to the Rota and the Supreme Tribunal. More frequent are the situations where the same difficulty has been the subject of several recourses. In the diocese of Illerden in Spain, the canonical literature reports six separate cases about the ownership of ecclesiastical property, including three in 1998, one in 2004 and one in 2005828. 1.3.2. Suspensive Effect Canon 1736 provides for the possibility that hierarchical recourse can suspend the execution of a decree: Can. 1736 §1. In those matters in which hierarchical recourse suspends the execution of a decree, the petition mentioned in can. 1734 also has the same effect. 828 Cf . Prot 29550/98, 29550/98B ; 29550/98 CA; 36517/04 ; 37106/05 ; 37766/05 CA, cited in particular in the 2014 reports in AAS (pp. 58 to 61) and by Gil AZNAR (F.R.) Los Bienes Artisticos, op. cit., 211-236. 254 §2. In other cases, if the author of the decree has not decreed the suspension of execution within ten days after receiving the petition mentioned in can. 1734, an interim suspension can be sought from his hierarchical superior who can decree a suspension only for grave reasons and always cautiously so that the salvation of souls suffers no harm. §3. If the execution of the decree has been suspended according to the norm of §2 and recourse is proposed afterwards, the person who must deal with the recourse according to the norm of can. 1737 §3 is to decide whether the suspension must be confirmed or revoked. §4. If no recourse is proposed against the decree within the established time limit, the interim suspension of the execution given according to the norm of §§1 or 2 ceases by that very fact. When a petitioner or the promoter of justice requests it, the suspension of a decree must be considered in priority, even before the trial is brought to a conclusion. Here is a prime example of a decision relating to a suspension: In case Prot 44605/10 CA, the Tribunal denied the request for suspension of the decree of exclaustration829, on the grounds that the imposition of exclaustration is not a penalty, but a remedy for the good of the community and perhaps also for the good of the person, and that it is not necessary that there be fault for its imposition. Here is another example of a judgment that is more complex: In case Prot. 37106/05 CA, the Congress rejected the request for suspension of the initial decree concerning the owner of ecclesiastical property, but it did take protective measures for the goods to be maintained830. 1.3.3. Restoration of the Previous Situation In the ordinary contentious trial, canons 1645 to 1648 provide for the possibility of a reinstatement of the situation of the petitioner, once the case has been judged. Can. 1645 §1. Restitutio in integrum is granted against a decision which has become res iudicata provided that its injustice is clearly established. 829 One might think in particular of the deprivation or revocation of an office, provided for in canon 143. 830 AZNAR (Gil), Los bienes artisticos, op. cit. p. 205-210: Prot. 37106/05 CA Instantia suspensionis reicitur. Custodia bonorum commitur. 255 Before 1988, although Art. 126 of the special norms did not make reference to the resititutio in integrum (c. 1645-1648), the Apostolic Signatura agreed to examine a few requests for reinstatement831. In 1988, Article 122 of Pastor Bonus specified that the Supreme Tribunal is competent for complaints of nullity and for requests for reintegration against the decisions of the Roman Rota, without mentioning that it is referring to decisions issued by the second section. In 2008, Article 91 of the proper law of the Supreme Tribunal said that it is also competent for complaints of nullity and for requests for reintegration resulting from individual administrative acts deemed illegitimate by a decision of the College. Since that time, various cases have been considered, where an obligation for reintegration was the subject of a complementary decision, negative832 or positive833. In the decision of the College of 24 June 1995, the petitioner in case 22571/91 CA was given restitutionem in integrum. 1.3.4. Repair of Damages From 1967 to 1983, the competences of the second section were limited to judging the legitimacy of single administrative acts, without examining their merit and their consequences in terms of reparation of damages. In 1983, the new code brought an important innovation with canon 128, which had no equivalent in the 1917 Code, and which poses the principle of reparation of damages resulting from illegitimate administrative acts. Can. 128 Whoever illegitimately inflicts damage upon someone by a juridic act or by any other act placed with malice or negligence is obliged to repair the damage inflicted. In 1988, the Apostolic Constitution Pastor Bonus drew the consequences of this change, now providing the possibility for a petitioner to petition the Supreme Tribunal for reparation of damage caused by an act deemed illegitimate: Article 123 § 2. In this case, in addition to the judgment of illegitimacy, there can also be recognized, if sought by the petitioner, the repair of damage caused by the illegitimate act. 831 MONTINI (Gian Paolo), « De querela nullatis deque restitutionis in integrum adversus sententias Sectionis alterius Supremi Signaturae apostolicae Tribunalis » in Periodica, 82 (1993), p. 680-697. 832 Prot. 38786/06 CA, publiée par le requérant sur son site www.jaybarra.net/ 833 Prot. 22571/91 CA, cited by ASS (1995) p. 849. 256 Practical implementation is difficult834, but it has been implemented835, so that now there are cases where reparation of damage is imposed by the Court, even if the length of the procedure can relativize the interest of this advantage. A priest saw his office of teaching taken away from him, for a reason that he considered illegitimate. Having filed a recourse, it was registered in 1976 under no. 10997/76 CA. He won the case and nine years later, a decision of the College on 1 June 1985 required that he be reinstated in his teaching position836. In 2008, articles 92 and following of the proper law of the Supreme Tribunal specified the methods of execution of the decisions of the second section, while articles 101 to 103 lay down the terms of reparation of damages. As these texts are recent and difficult to find, here they are in full: Art. 92. § 1. Unless it is otherwise provided, the Dicastery that has issued or approved the contested act must send the decision for execution itself, or through someone else. § 2. But if it refuses, neglects or differs beyond a reasonable or fixed time period, excepting the right to seek redress for possible damages caused to the interested party, the execution returns to the Supreme Tribunal, after the superior authority has been informed. Art. 93. § 1. The executor must implement the decision according to the meaning of the words, taking into account the text and context. § 2. If it involves monetary reparation, the solution must be made within thirty days of the notification of the decision, unless the Supreme Tribunal has provided otherwise. §. 3. If the illegitimacy of an act has been declared as a result of the procedure, the authority can renew it only in accord with the norm of law, and according to the manner and the time limits determined by the decision. § 4. But if the illegitimacy of an act has been declared because of the decision, the authority may review it, but only in accord with the norm of law and according to the manner and the time limits set by the decision. Art. 94. If a controversy arises with respect to the mode of execution, the Congress is to swiftly resolve it. 834 MONTINI (Gian-Paolo), « Il riscarcimento dei danni… » in La giustizia amminitrativa nella chiesa, Studi giuridici, XXIV, Cità del Vaticano 1991, p. 200. 835In the present case, the length of the procedure is explained by the fact that the petitioner had to wait for the promulgation of the new Code of Canon Law, before asking for the benefit of this measure. History does not say whether he received compensation for the wages to which he would have been entitled during the nine years of interruption of his work. 836 Reparatio damonorum ad Signaturam Apostolicam pertinet quoad restitutionem Rev.di in munere docendi, nisi aequa solutio inveniatur 257 Art. 101. The request for reparation of damage from an illegitimate act, as per Art. 34, § 2, may be proposed up until the time of the summary oral discussion. Art. 102. The authority is cited and responds with regard to the alleged damages, provided that these stem from the decision itself. Art. 103. To avoid excessive delays, the Prefect or the College may defer the question of damages until the Supreme Tribunal makes the final decision on illegitimacy. 1.3.5. Implementation of the Decision Once the decision is promulgated, its implementation may still pose a problem. In case Prot 15721/83 CA, the College of Cardinals judged on 23 January 1988 that the decision of the Congregation for Religious and Secular Institutes confirming the expulsion of a priest-religious from a religious institute, was illegal at the time both in substance and in procedure. On 6 July 1989, the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life nonetheless confirmed the dismissal of the priest-religious, mentioning a document of 21 March 1986 of the Pontifical Council for the Interpretation of Legislative Texts. On 12 September 1991, the Congress refused to admit the new recourse of the priest and on 9 May 1992, the College confirmed this refusal837. 1.4. Case Law on Procedure A comprehensive presentation of the case law would require several books, since it is vast. It is different for jurisprudence relating to procedure that some authors have attempted to present. Relying on Chapter 5 of the book by William Daniel on good administrative governance838, we propose to expose the main situations in which the Supreme Tribunal has judged that a particular administrative act, validated by the Holy See, is illegal in form839. Without entering in detail, we will distinguish with him the jurisprudence relating to the rules of general and specific procedures. 837 Ministerium Iustitiae, op. cit. p. 203-254. DANIEL (William), The Art of Goog Governance, Montréal 2015, Wilson & Lafeur, 275 p. 839Constat de violatione legis in decernendo. 838 258 1.4.1. General Procedures In the first place, illegality is recognized when the administration which has issued an act is incompetent to do so840. Similarly, exclaustration imposed on a religious by his superior or provincial would be deemed illegal because it is not in accord with canon 686 §1. The second type of cases concerns canons 50 and 51, relating to administrative acts: Can. 50 Before issuing a singular decree, an authority is to seek out the necessary information and proofs and, insofar as possible, to hear those whose rights can be injured. Can. 51. A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision. Non-compliance with these canons gives rise to abundant case law, analyzed by William Daniel: • The absence of prior information for aggrieved persons may be the cause of the illegality; but not if the person has been contacted, and has neglected to take measures which would have allowed him to receive the information, such as, for example, forwarding mail during the holidays841; • The failure to hear those whose rights are infringed may be the cause of the illegality; but this obligation ceases if people refuse to dialogue or reject it later842. Canon 50 contains no obligation to hear those whose rights are not directly injured, even if they are affected by the decision. Particular attention must be paid to the right of defense, which, while not the subject of a particular canon, is regarded as one of the conditions essential to the legality of the procedures of ex gratia and hierarchical recourse, leading to the final decision of the Dicastery. The jurisprudence on the subject requires that: • The person concerned be informed of the reasons for the order, but it does not necessarily require the communication of evidence843; 840 This is, for example, the case for case Prot 42677/09 CA, in which the Bishop was incompetent to make the impugned decision. Cf. W. Daniel, The Art of Good Governance, p. 182, note 6. 841 This is, for example, the case for case Prot 30199/99 CA, cited by W DANIEL, The Art of Goog Governance, p. 186, note 17. 842 This is, for example, the case for case of exclaustration imposed Prot 12618/80 CA, cited by W DANIEL, The Art of Goog Governance, p. 187, note 23. 843 Tel est par exemple le cas pour la cause Prot 12618/80 CA cited by W Daniel, The Art of Goog Governance, p. 195, note 51. 259 • The administration respond to the fundamental questions of the complainants844, but not necessarily to all their arguments845. 1.4.2. Specific Procedures The code also contains norms for particular administrative procedures that are necessary to the hierarchy, without which the Tribunal would deem their acts to be illegal. We have seen that the procedure was precise and binding in the case of transfers and removals of parish priests; otherwise the decision will be considered illegal. It is the same in other areas, such as the reorganization of parishes or reductions of churches to profane use, for which the administrative authorities are required to hear the advisory bodies provided by the law explicitly requiring consultation on the subject of the decision846. For removals from offices, canon 193 must be respected under pain of invalidity: 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. In the case of imposed exclaustration, the procedure laid down in the abovementioned canon 686 §1 must be strictly followed. For extrajudicial decrees relating to criminal cases, canon 1720 must be scrupulously respected, under pain of invalidity: Can. 1720 If the ordinary thinks that the matter must proceed by way of extrajudicial decree: 1/ he is to inform the accused of the accusation and the proofs, giving an opportunity for self-defense, unless the accused neglected to appear after being properly summoned; 2/ he is to weigh carefully all the proofs and arguments with two assessors; 3/ if the delict is certainly established and a criminal action is not extinguished, he is to issue a decree according to the norm of canons 1342-1350, setting forth the reasons in law and in fact at least briefly. 844 This is, for example, the case for case Prot 13557/81 CA cited by W Daniel, The Art of Goog Governance, p. 195, note 54. 845 This is, for example, the case for case Prot 17083/83 CA cited by W Daniel, The Art of Goog Governance, p. 195, note 55. 846 A consultation on a deletion of the parish is not worth consultation on the reduction of his church to profane use. 260 Thus, the assessors must be present847 and the form of canons 1342-1350 must be respected. 2. The Statistical Results Canonical publications mention quantified results on the activity of the second section, but the heterogeneity of the data makes it difficult to compile statistics; however, we will try to give figures for: • The number of significant challenges; • The number of recourses filed; • The number of recourses admitted to discussion; and • The outcome of the recourses admitted to discussion. 2.1. The number of significant challenges From two surveys conducted in the dioceses of Nancy-Metz848 and Dakar849, we can estimate that more than 10,000 controversies have occurred each year with the hierarchy of the Church since 1967, with a character of gravity exceeding the simple scope of the persons immediately concerned. Even if this figure is to be accepted with caution, it suggests a total of approximately 500,000 administrative disputes in 50 years. 2.2. The Number of Recourses Filed It is easier to quantify the number of contentious-administrative recourses than the number of hierarchical recourses. From a survey conducted in the USA850, 847 This is, for example, the case for case Prot 18881/87 CA cited by W Daniel, The Art of Goog Governance, p. 196, note 57. 848ROZE (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 2014-15. In his investigation, Etienne Rozé analyzed 50 administrative controversies. In the absence of precise information, it can be assumed that these were controversies that had occurred during the past ten years, which leads us to estimate a realistic number of five controversies per diocese and per year. 849 The author interviewed 25 people, during the symposium on penance held in February 2017 in the Saint Augustine Center of Dakar. Of these people, 72% could recall an administrative controversy in their diocese. This figure is consistent with the estimate of 50 controversies in less than ten years, which could be obtained by questioning a greater number of people. 850 PROVOST (James H.), “Recent experiences of administrative recourse to the Apostolic See”, in The Jurist, 46 (1986), p. 142-163. He identified 36 hierarchical recourses filed with the Roman Curia between 1969 and 1984, in 141 of the dioceses which responded to the survey. 261 and from the number of contentious-administrative recourses, it can nevertheless be estimated that controversies give rise to 200 hierarchical recourses per year in the Roman Curia851, or approximately 2% of the controversies. As to the number of contentious-administrative recourses, Zénon Grocholewski considered the figure to be low compared to the number of the faithful852. In 1970, the activity report of the Holy See provided the first quantified statistics, specifying that: For the period from 1 October 1968 to 30 September 1969, the contentious-administrative cases numbered 16, versus 12 in 1968853. In 1972, the activity report made its first comment about statistics: This number of 65 recourses filed, of which 36 are still ongoing, demonstrates the effectiveness of the recourse procedure. Then, the reports generally indicated the number of cases introduced or processed in the past year854, with marked interruptions between 1977 and 1986. Since 2002, reports indicate the number of cases recorded by the Tribunal, and cite in general the cases handled by the Congress and the College, so that by counting them, and getting closer to the number of recorded cases, we can 851An extrapolation of figures obtained by James Provost allows us to estimate 50 administrative recourses filed each year with the Roman Curia, (36 recourses x 50/15 years x 300/141 dioceses); but this figure appears under-estimated, because the dioceses are not necessarily aware of all the recourses filed. We can reasonably estimate that two-thirds of the remedies are resolved by the Dicasteries, or abandoned by the petitioner in the face of the complexity of contentious-administrative recourse, and so the number of hierarchical recourses must be at least 3 x 30 per year. 852 GROCHOLEWSKI (Zenon) “Pregi e defetti nell’attuale amministrazione della giustizia nella chiesa”, Studi giuridici, XLV, Roma 1977, p. 167-168. 853 Translated from the Italian of AAS (1969), p. 758. This information was summarized in French by Mgr. Charle LEBVEBVRE : « Activité administrative et judiciaire des Dicastères romains », l’Année canonique T XV, p. 655-673. 854Over the years, the period considered in the activity report of a given year corresponds to the twelve months that extend from 1 October of the previous year to 30 September of the next year; or from 1 November to 30 October. In the absence of clarification, it can be assumed that this is true of the cases presented to the second section and recorded by the Tribunal, but some uncertainty remains. Thus, in the 1972 report, the figure of 65 recourses which succeeded in the last five years, does not correspond to the sum of the annual figures indicated in the different reports, namely, 12 in 1968, 16 in 1969, 20 in 1970, 12 in 1971 and 20 in 1972, for a total of 80 cases. Similarly, the activity report of 1974 fact mentions 98 recourses filed, while other reports note 65 from 1967 to 1972, (cf. supra), 22 in 1973 and 16 in 1974, which should be 103 in total. To explain the differences, it can be assumed that some cases have been included over several consecutive years, and counted several times in the annual reports, but only once in the synthesis of the five and the first seven years. In addition, the number of cases registered and/or processed by the second section does not correspond only to contentious-administrative cases, but also to legal cases identified with "CG,” that we have excluded from our field of study. 262 have a fairly accurate indication of the volume of activity of the second section of the Supreme Tribunal. Thus, the activity reports of the Holy See are mention 1031 recourses presented or reviewed by the second section, during the 33 years when the information was provided. By estimating the number of recourses filed during the 17 missing years, we arrive at a total of 1530 contentious-administrative recourses deposited over 50 years, from 15 August 1967 to 14 August 2017. The graph below, showing cases recorded by year, indicates that their number has increased regularly over time. Number of registered Cases "CA" 120 100 80 60 40 20 0 In 1992, Zénon Grocholewski considered that there had been more than 500 recourses filed between 1967 and 1991855. Since our database identifies 496 during this period856, we can consider that it is quite representative of these years; while the number of a thousand recourses out of a total of 1500 suggests that the representativeness of our database is lower for the years 1993 to 2017857. 2.3. The Origin of the Recourses Filed The places of origin of the 175 recourses for which the country could be identified858 are located in Europe for two-thirds (66%), and in North America, South America and the rest of the world for 11% each, with a total absence of 855 GROCHOLEWSKI (Zénon) « La giustizia amministrativa presso la Segnatura apostolica », Ius ecclesiae, 4 (1992), p. 3-22. 856 Extract from the database on 30 September 2016 857Two reasons for this lesser representation must be the absence of information from the Supreme Tribunal during the years 1996 to 2002, and the absence of publications of recent cases. 858 Extract from the database on 30 August 2016. 263 cases from Africa. Among the countries most represented are Italy and Spain, as could be expected; but also the USA, France, India and Brazil, as well as Great Britain, the Netherlands, Mexico, Bosnia, Chile, Lebanon and Portugal. Countries of the Recourses 60 50 40 30 20 10 Italy Spain USA France India Bresil Great Britain Netherlands Mexico Bosnia Chile Lebanon Portugal Austria Canada Germany Argentina Australia Colombia Equator Ireland Sweden Surinam Vatican 0 2.4. The Type of Petitioners According to the information contained in the database, the 714 recourses for which petitioners are identified were filed mostly by priests (46%), and then by religious (22%), then by the laity (20%) and finally by legal persons (12% Dicasteries, dioceses, parishes, associations, etc.). The above percentages are not totally reliable because the boundaries between the categories are blurred859. 2.5. The Outcomes of the Recourses Filed The information published in the activity reports of the Holy See is generally not specific enough to give a good idea of the final outcome of recourses. Sometimes, the reports provide interesting information on the state of the recourses and their fate, as is the case in the 1987 report. During the period from 1 December 1986 to 30 November 1987: • • 34 recourses were presented to the second section; 13 were returned to the Dicasteries or rejected in limine; 859 For example, religious can be priests or laypersons, and counted in one or the other of the three categories. 264 • • • • 4 were reviewed by the Congress and not admitted to discussion by the College, for lack of foundation—one of which was the subject of recourse; 10 recourses were admitted to discussion by the College; 7 were recorded but have not yet been processed860. 7 cases have been examined by the College of Fathers of which four were the subject of a finding of a violation of law; three were not the subject of a finding of a violation of law; and none are listed as abandoned. It is possible to perform similar analyses on the activity reports of the second section in the AAS for the years 1988 and 1989. It is also important to study the publications of canonists who have carried out systematic analyses of decisions by the second section, during specific periods and on specific themes. In particular, Giuseppe Lobina addressed the matter for the 94 first cases of 1972861, Frederico d’Ostilio for 27 cases relating to consecrated persons in 1976862, Mickael Landau for 62 removals and transfers of parish priests in 1979863, Gian Paolo Montini in 2014 for 143 cases published between 1968 and 2012864, and finally we ourselves, with our online database, became involved in this work and registered 994 cases in our database as of 1 January 2017. The statistical presentation of the fate of recourses is complicated for multiple reasons, which include: • the analyses relate to a given period and not to a series of recourses, and so it is not possible to know the fate of the recourses registered during the period studied, if they are the subject of subsequent decisions; • The decisions relating to the cases cited are often unknown, inaccurate or incomplete; • The formulation of decisions is not uniform865 and can give rise to various interpretations; 860 This figure is an estimate. LOBINA (Guseppe), « Rassegna di giurisprudenza della setio altera », ME (1973), p. 305. 862 D’OSTILIO (Francesco), Istituti della vita consacrata nelle decisioni del Supremo Tribunale della Segnatura Apostolica. - [S.l. : s.n., 1987. - p. 280-344 ; 24 cm. (Pubbl. priva del front. Tit. della cop. - Estr. da: Clarentianum, vol. XXVII, 1987. 863 LANDAU (Mickael), « 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. 864 MONTINI (Gian-Paolo), « Conspectus decisionum quae a Supremo Signaturae Tribunali in ambitu contentioso administrativo ab anno 1968 ad annum 2012 latae atque publici iuris factae sunt. Periodica 103 No1 (2014) p. 27-66. 865For example, with regard to the decisions of the College of the Fathers about recourses against the decisions of non-admission to the discussion by the Congress, there are varied for861 265 • a significant number of recourses are the subjects of several decisions, for example when the petitioner makes a request for suspension, or when the Congress does not admit a recourse to discussion, and the petitioner then made recourse to the College. Making use of the information of the five investigations published, we end up with the following results866: Number of cases reviewed Decisions for which we have information 867 Rejected in limine Not admitted to discussion Abandoned or LF868 Other (Susp., REI869…) Admitted to discussion Giuseppe Lobina (1972) Frederico D’Ostilio (1976) 50 83 Mickael Landau (1999) 61 Gian-Paolo Yves-Alain Montini Ducass (2014) (2016) 102 994 40 100 % 35 100 % 54 100 % 55 100 % 280 100 % 22 55 % 12 34 % 25 46 % 13 24 % 75 0 0% 16 46 % 17 32 % 26 47 % 155 55 % 4 10 % 1 3% 11 20 % 6 11 % 11 4% 4 10 % 4 11 % 1 2% 6 11 % 10 4% 10 25 % 2 6% 0% 4 7% 29 10 % 27 % Regarding those recourses examined by the College, the Supreme Tribunal does not publish figures, so most of the authors content themselves simply with trends: The Apostolic Signatura reverses a decision by an administrative authority only in a limited number of cases, which is not a surprise870. By counting all the decisions of the College analyzed by the authors, we get the following results: mulas: "Diese Entscheidung wurde von Richterkollegium bastädigt" (Michal LANDAU); "Ricorsi respinti perché manifestamente infondati e per i quali è diventata definitiva la decisione del Congresso" (Frederico D’OSTILIO); "De recursu adversus decretum reiectionis a Congressu latum. Recursus non admittitur ad disceptationem" (Gian-Paolo MONTINI); “La Plenaria ha respinto il ricorso [avverso il decreto del Congresso] ‘utpote manifeste carentem fundamento’" (Supreme Tribunal, AAS (1988), p. 1406). 866 It is important to make an in-depth study, in order to obtain estimates that are as accurate as possible on the fate of recourses submitted to the Supreme Tribunal 867 Decisions by the Secretary, the Prefect or the Congress. 868 Litis finite; end of the controversy 869 Restitutio in integrum; 870 MARTENS (Kurt), Protection of Rights… », The Jurist, 69 (2009), p. 684. 266 Giuseppe Lobina Frederico D’Ostilio Mickael Landau (1972) (1976) (1999) GianPaolo Montini Yves-Alain Ducass (2016) (2014) Decisions of the 10 100 % 48 100 % 27 100 % 65 100 % 207 100 % College Finding of no vio4 lation 40 % 25 52 % 19 70 % 35 54 % 135 65 % Finding of a viola2 tion 20 % 15 31 % 6 22 % 23 35 % 54 26 % Litis finite 3 30 % 6 13 % 1 4% 1 2% 9 4% Other 1 10 % 2 4% 1 4% 6 9% 9 4% It remains to make the figures consistent, vis-a-vis the number of recourses filed. To do this, we need to estimate the percentage of recourses reviewed by the College, in reference to the total number of recourses filed with the Tribunal. However, the number of decisions of the Congress admitting a recourse to discussion871 differs significantly from the number of recourses reviewed by the College872. Two explanations can be given for these apparent inconsistencies: • The existence of a significant number of cases not admitted to discussion, but which were the subject of a review by the College following a recourse against the decision of non-admission to discussion. • The recourses published are not representative of all recourses, because the authors naturally prefer cases admitted to discussion, to the extent that the corresponding case law is more complete and informative than that of cases which were not admitted to discussion. Our database reveals that the number of complaints considered by the College is approximately 40% of the total number of recourses submitted. In the absence of a better one, we will retain this figure as an estimate, knowing that these 40% consists of 25 % of recourses admitted to discussion by the Congress, and 15 % of recourses rejected in limine or not admitted to discussion, 871 25% according LOBINA, 6% according to D’OSTILIO, 0% according to LANDAU, 7% according to MONTINI and 22% according to our database. 872 20% according to LOBINA, 58% according to D’OSTILIO, 44% according to LANDAU, 64% according to MONTINI and 10% according to our database. 267 for which the petitioner challenged the corresponding decision of the Secretary, the Prefect or the Congress. It then becomes relatively easy to estimate the fate of cases: • 25 % of recourses are dismissed in limine873; • 45% of recourses are recorded, but not admitted to discussion. Among them, o approximately two-thirds, or 30 % of the total, are the subject of a suspension of the proceedings, and o approximately one third, or 15 % of the total, are the subject of recourse with the College; • 25% of recourses are admitted to discussion by the College of cardinals874; • 5% of recourses are the subject of a termination of the dispute by agreement between the parties, or by abandonment by one of them. Among the 40% of recourses reviewed by the College875. (= 25% + 15%), • 25 % of recourses are dismissed; • 10% of recourses are accepted; • 5% of recourses are resolved by an abandonment by one of the parties, or by an agreement between them. In addition, 10 % of recourses are the subject of intermediate decisions (such as conflicts of competence, suspensions, reparation of damages, reintegrations) or decisions that are not significant (ex: declarations). By regrouping the disputes before and after the Congress, we arrive at the following estimates, which were submitted for consideration by the Supreme Tribunal, without any answer from it at that stage. These figures emphasize, among other things, the fact that the majority of contentious-administrative recourses are not admitted to discussion, which creates tremendous frustration for the petitioners. 873 This figure was more important at the beginning of the period, as a result of the initial imprecision of the procedure, which brought in lawyers to propose broader recourses than are proposed today; and the rejection of recourses on decisions of Dicasteries prior to 1 March 1968. 874 The proposed figure is higher than the figures recorded, because the number of recourses considered by the College significantly exceeds the number of recourse admitted to discussion. 875 Namely 361 cases reviewed in plenary session, for a total of 994 cases cited in the database as of 1 January 2017. 268 2.6. The Length of Time for Processing Recourses Our database shows us that, for 201 recourses involving several dates entered outside of the year of registration876, the average time between two stages of recourses is the following: • etween the administrative act and the decree of the Congregation, there is an average period of 13 months, with a minimum of 2 months and a maximum of 41 months, • Between the decree of the Congregation and the registration of the contentious-administrative recourse, there is an average of one month, • Between the decree of the Congress and the decree of the College, there is an average period of 12 months, with a minimum of one month and a maximum of four years, when there are several decrees in the College. As for the delay in processing an administrative recourse, it is possible to evaluate it by calculating the number of months between the date of registration of the recourse and the last decision877: • of the 294 cases where the last known decision was issued by the Secretary or the Prefect, the average duration of the procedure is 23 months; • of the 324 cases where the last decision was issued by the College, the average duration of the procedure is 29 months. It is also possible to present, from the information in the database, how the total duration of the procedure has evolved: 876 Analysis carried out on the database on 30 September 2016. When no date of registration is indicated, we chose a default date of 30 June of the year of registration if the decision is subsequent to this date, or 1 January of the year of registration if a first decision is rendered during the first half of the year. 877 269 Length of time for a contentiousadministrative recourse 6,0 5,0 4,0 3,0 2,0 1,0 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 0,0 Once a decision has been rendered, the time limit for notification is usually short, but there are exceptions, as for example in case Prot. 31290878, where the College delivered its decision on 22 June 2002, while the petitioner was notified of the decision on 15 January 2003. 3. Reconciliation and Mediation In his book on the Institutes of Consecrated Life879, F. d’Ostilio considered that few recourses reach a decision by the College because, on the proposal of the Supreme Tribunal, the parties often find an agreement and renounce continuation of the contentious-administrative recourse. We do not share this point of view, and will come back to the question in detail, throughout Chapter 10. 4. Cross-Cutting Aspects Treatises about canonical administrative law run in the hundreds of pages, intended to discuss the details of the procedure, with general cases and all the exceptions. We will not go into these details, limiting ourselves to a few observations arising from the jurisprudence. 878 Ministerium Justitiae, op. cit. p. 324-325. D’OSTILIO (Francesco), Istituti della vita consacrata nelle decisioni del Supremo Tribunale della Segnatura Apostolica. - [S.l. : s.n., 1987. - p. 280-344 ; 24 cm. (Clarentianum, vol. XXVII, 1987. Quote by Sergio AUMENTA, op. cit., p. 167. 879 270 4.1. Le Petitioner In practice, the petitioner is generally the person who feels aggrieved and makes the initial hierarchical recourse, but sometimes it is the bishop who challenges the decision rendered by the Dicastery during the hierarchical recourse. Canonists will quite rightly recall that to act, a petitioner must have legal capacity in the Church, which includes baptized individuals (cf. c. 1471), or even non-baptized persons (cf. c. 1476), but not always associations (cf. Chap. 4). They will recall that the petitioner must also have the capacity to act, which implies that he is directly concerned by the administrative act singular that is being challenged. To be able to act, the member of the faithful must indeed know that he can do it, and how it should be done. It is this which in our opinion is the most important problem, as we can see in discussions with Catholic faithful, particularly during an investigation conducted on 22 and 23 February 2017 in Dakar: Of 25 respondents among the participants in a colloquium called Repentance: its genesis and its actuality880, 72 % of them could remember a dispute arising from the exercise of administrative power yet none of them knew anything about administrative justice in the Church and, a fortiori, about ex gratia, hierarchical, and contentious-administrative recourses, with the corresponding time-limits. 4.2. The Difficulties of the Procedure The case studies carried out, together with the canonical literature, demonstrate procedural difficulties in the following areas: 1. language difficulties; 2. difficulties of access to the information to gather the evidence; 3. difficulties in finding a lawyer who is both available and competent; 4. difficulties in finding witnesses; 5. difficulties in collecting evidences; 6. length of the procedure; 7. related costs. Here is our perception of these difficulties. The next chapter will try to propose solutions. 880 The international symposium organized by the Saint Augustine Center of Dakar brought together more than 100 people involved in the Church. The sample was composed of middleaged persons who were either Senegalese or who lived in Senegal, of whom 56 % were laypersons, 32 % religious, and 12 % priests. 271 4.2.1. Langage In the 15th century, at the time of John XXII, the apostolic Chancery estimated that priests who wanted to obtain an ecclesiastical office had to master the language spoken locally881: Nisi persona bene intellegat et intelligiber loquatur ydioma illius loci ubi dicta parrochialis ecclesia consistat882. Now that national languages have widely unified the local dialects, and the Catholic faithful mostly speak a few languages that are globally widespread, one might imagine that the administrative Tribunal of the Catholic Church also expresses itself in the languages most spoken by the Catholic faithful. In fact, the Catholic faithful who wish to use ecclesiastical justice are confronted with a language problem. In effect they need to understand the mechanisms of ecclesiastical justice, and to access a minimum of jurisprudence; but the published documents are often in a foreign language and they contain terms specific to ecclesiastical law, little comprehensible to those who are not familiar with them. Percentage of publications in Latin quoted by Mgr. Montini % de publications en latin 120% 100% 80% 60% 40% 20% 0% Years (from 1968 to 2012) ” On 11 April 2016, during a visit to the Supreme Tribunal, the Secretary of the Tribunal argued in favor of Latin as the working language. After he left the Tribunal, the Africans present commented 881 ERDÖ (Card. Peter), « Il parroco deve connoscere la lingua dei fedeli », Folia theologica et canonica (2015) 137-145. 882 Ed. VON OTTENTHAL, Regula Cancelleriae Apostolicae, 40. 272 on this choice among themselves, admitting that the documents sent to their Diocese by the Apostolic Signatura are invariably disregarded because they are written in Latin, and nobody understands this language; while the documents of other Congregations are often written in French or English, and so they are read883. Another example of language difficulties involves the names of the dioceses used in contentious-administrative litigation. There are ancient names that are not always found on the internet sites of the dioceses themselves, and it is sometimes difficult to identify the current names of the dioceses. Here are a few examples: Nom de Diocese City Country Arboren Argentinen Evrien-Corbilien-Exonen Gadicen Mutinen Nemausen Roffen Oristano Strasbourg Evry Corbeil en Essonne Cadix Modène Nîmes Rochester Italy France France Spain Italy France USA A third example that seems anachronistic for a majority of Catholic faithful is the use of ecclesiastical titles that they are expected to use in contentious-administrative recourses, prefacing emails to the Prefect or Secretary of the Tribunal with the title of "His Eminence Most Reverend Monsignor. 884" Alternatively, the Latin name of the Catholic Institute of Paris has been replaced with the English "Catholic University of Paris" on the logo that they present in international symposia, while the canonical review Vergentis excludes Latin from of its publications, allowing only five languages: Spanish, Italian, German, French and English. Readers wishing to research the question of ecclesiastical language can consult works on this topic such as those of Marcellus Udugbor Okenwa885, whose conclusion is this: The institution of Kiswalili as the [official] language of Tanzania has helped a lot in the battle against tribalism […] Although I am of the 883 Study tour of the Faculty of Canon Law of Paris. It is the manner in which interested parties sign their presentation to the Tribunal www.vatican.va/roman_curia/tribunals/apost_signat/documents/rc_trib_apsig_doc_20000526_profilo_it.html 885 UDUGBOR (Marcellus Okenwa), Il problema del concetto del linguaggio giuridico nei paesi africani, Apollinaris, 2013 No 84,/2, p. 487-512. 884 273 opinion that we must continue to teach English in our schools, because English is the Kiswalili of the world886. 4.2.2. Access to Information and to the Secret Before the Second Vatican Council, the secret appeared as a brake on the right of defense of the faithful that was not yet clearly formulated: Fathers Chenu, Congar and Féret knew about how the Holy Office, being itself the heart of this system, had maintained in its investigation and judicial procedures their inquisitorial stamp […], the omnipresence of the law of silence encloses people and their actions in secrecy, it seals consciences in silence, it prevents one from publicizing the authors of a decision, a decree of a penalty887. Even today, although perhaps to a lesser extent, the first difficulty that a member of the Catholic faithful encounters when asserting his rights when he feels aggrieved by an administrative act that he considers illegal or illegitimate, is to obtain information about how to do so. This is the contention of Ernest Caparros about the obligation of pastors to transmit the doctrine of the Pope, and that could translate into useful information for the Catholic faithful, such as the proper law of the Tribunal in ther language, or a list of registered attorneys: Thus, the law of silence which some have imposed on the Magisterium of the Pope and the Roman Dicasteries is, strictly speaking, an injustice888. In fact, essential information, such as the proper law of the Tribunal, or the list of accredited advocates, does not appeared on the website of the Tribunal889. With regard to the proper law of 2008, it took eight years for well informed canonists to get a French version, thanks to Denis Baudot and the journal L’année canonique890. 886 NYERERE (Julius), Président de la République de Tanzanie, « Freedom and unity. A selection from writing and speeches », 1962-65, Dar El Salaam, 1966, cited by A. Simpson, Languages, p. 258. 887 LEPRIEUR (Francis), Quand Rome condamne, op. cit. p 400-401 888 CAPARROS (Ernest), Réflexions sur la charité Apstorale et le droit canonique », L’année canonique, 37, 1995, p. 259-276. 889 We hope that progress will be made by the Supreme Tribunal on its website after 2017; otherwise, we could apply to the Supreme Tribunal the words of Saint Augustine: Humanum fuit errare, diabolicum est per animositatem in errore manere. (Sermon 164, 14). 890 BAUDOT (Denis), in L’année canonique, 55, 2013, p. 21-65. 274 A layman contacted the Supreme Tribunal asking for information on the procedure of contentious-administrative recourse, and received the following reply from the Secretary of the Tribunal: As you can easily understand, the Supreme Tribunal may not respond favorably to your request due to the impartiality that every tribunal must show. To respond at least partially, here is an informational document on recourse (Attachment 1). It is necessary, however, if you intend to continue, to consult a canonist who is expert in administrative canonical justice, or, rather, a lawyer from among those who are enrolled in the list of lawyers before the Curia (Attachment 2), who are the only ones entitled to be involved in contentious-administrative processes891. The culture of secrecy may indeed be understood by the acts of instruction, for which the secret is protected by canon 1609 §2 or by Article 97 of Special Norms: Processes in the second section take place in secret for all, with the exception of the parties and their lawyers, who have the opportunity to examine the acts after their publication, take notes, and even to obtain authentic notes, with the permission of the Cardinal Prefect and after submitting a written and reasoned request and a hearing by the Secretary and the Promoter of Justice. It should be noted that this article has not been put into the proper law, which nonetheless imposes secrecy on judges, lawyers, notaries and other actors at the Tribunal, who could access secret information vis-à-vis the petitioners: Art. 25. When they begin their office, all are required to say, before the Prefect and in the presence of the notary, the profession of faith and the oath to observe secrecy and to accomplish their job duly and faithfully. In practice, it is difficult for the Tribunal to enforce secrecy on the petitioners, although some do observe it, while others publish the full Tribunal decisions which concern them892. A petitioner was severely reprimanded for having disclosed the documents of a trial that involved him, and in particular a 17 July 1992 decision, in which the same Congress had admitted to discussion his dispute with the Congregation for the Clergy, which had validated the transfer that his bishop had imposed on him.893. 891 Cf. Letter from the Secretary of the Tribunal of 15 April 2016, referenced Prot 47747/13 VAR, communicated to Canonists without Borders. 892 893 www.jaybarra.net/ Cf Cause Prot 22785/91 CA, évoquée dans ASS (1991) p. 1302. 275 It seems to us that the anonymity of persons should be preserved, but it would be desirable for a greater number of decisions to be published in journals or on internet sites accessible to the public, so that the jurisprudence of the second section could be better known. It can constitute a source of law for the Church, as proposed in canon 19894. Such is also the point of view of eminent canonists: Having been trained in American civil law prior to obtaining a Doctorate in Canon Law, however, I am puzzled by the refusal of the Apostolic Signatura to share with others the wisdom of its decisions. Realizing that the canon law is not based on judgments background, as in the case of the "common law.” however, it would be useful for canonists and diocesan officials to know and learn of the jurisprudence and practice of the Apostolic Signatura, on these important topics895. 4.2.3. The Advocate Rare are the Catholic faithful who are sufficiently knowledgeable of canon law to initiate even the first steps of an ex gratia recourse, mediation and hierarchical recourse. It is therefore recommended at this stage to get help from a canonist, voluntary or not, who can help with these steps. On several occasions, the faithful who have contacted Canonists without Borders, and who have received basic information on the procedures of recourse, have been able to obtain the appointment, the answer or the favor that they had been unable to obtain previously, simply by mentioning that they are in contact with canonists and are familiar with the procedures of recourse. Conversely, some leaders of the Church do not admit that the faithful can consult a lawyer against one of their decisions, as shown in this extract from a letter sent to a lawyer of Burundi: These people who have chosen you as "their lawyer,” have they clearly explained to you the case they want you to defend, so as not to expose you to mockery? Because, if they are aware that they have to defend their faith, they know they have no need of any counsel besides the Holy Spirit, Who has been promised to us as our Paraclete. In matters involving witness to the faith, we read in effect this: "When 894 Can. 19 — If a custom or an express prescript of universal or particular law is lacking in a certain matter, a case, unless it is penal, must be resolved in light of laws issued in similar matters, general principles of law applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons. 895 PAPROCKI (Thomas J.), « Parish closings and administrative recourse to the Apostolic See: recent experiences of the archdiocese of Chicago », in The Jurist 55 (1995) p. 875, (Double translation) 276 they take you before synagogues and before rulers and authorities, do not worry about how or what your defense will be or about what you are to say. For the holy Spirit will teach you at that moment what you should say" (Luke 12,11) 896 In any case, a lawyer is essential for contentious-administrative recourse, as indicated in Article 16 of the proper law of the Tribunal: Art. 16. § 1. The parties may institute legal proceedings only via a defender, i.e. a advocate-procurator. In accordance with Article 183 of the Apostolic Constitution Pastor Bonus, the lawyer must be chosen from the list of lawyers approved by the second section: Art. 183. In addition to the lawyers of the Roman Rota and lawyers for the Causes of Saints, there is a list of lawyers empowered to assume, at the request of the interested person, the defense of cases before the Supreme Tribunal of the Apostolic Signatura, and to lend their support in hierarchical recourse before the Dicasteries of the Roman Curia. In 2016, the list of approved lawyers was not available on the site of the Tribunal, and so it has to be requested in writing. Once the list is received, it is necessary to contact several lawyers to find one who speaks the language of the petitioner, and who agrees to defend his case for a fee that is acceptable. When one cannot find a lawyer by oneself, the Secretariat of the Tribunal can facilitate research by putting the person in touch with one or several lawyers. Conversely, it may retain the information by failing to send the list of lawyers to the petitioner: A petitioner was sent to the Supreme Tribunal to find a Frenchspeaking lawyer, but did not receive a reply. He then found one on his own, with whom he prepared and filed the recourse. Unfortunately, the Supreme Tribunal refused to accept this lawyer, and so the petitioner had to find another one on the list that the Tribunal provided to him at that time897. The exclusive use of registered attorneys has advantages and disadvantages. It presents for the faithful the advantage of knowing that the lawyers concerned are competent in administrative canon law, but according to Thomas Paprocki, 896 Letter of 2 April 2013 from the Ordinary of Ngozi to the lawyer Fabien SEGATWA. See the chapter in this book devoted to private revelations in Burundi. Translated from French. 897 Prot. 49737/84 CA, information sent to Canonists without Borders. 277 The canonical system of representation by a Roman lawyer chosen on an approved list does not always serve the interests of the client. The lawyer may never be gone in the diocese concerned and there is often little familiar local circumstances. Although it is undoubtedly an expert vis-a-vis the dicasteries of the Holy See, a great effort must be made so that it can understand the facts that it is supposed to defend. A little flexibility to accept of canonical lawyers premises in disputes with the Roman dicasteries would help to overcome this difficulty898. For the Apostolic Signatura, the principle of a closed list of lawyers offers an advantage in relation to the confidentiality of decisions. The lawyers will tend to limit the information given to the petitioner, to be sure that that it will not be disclosed. In some cases, the absence of transparency nonetheless goes too far: Madam X, ex-religious, made recourse to the Supreme Tribunal against a decision of the Curia of 19 December 1982, validating a decree of dismissal from her congregation, although she had already left voluntarily by not renewing her temporary vows. The Tribunal assigned a "very brilliant" lawyer ex officio, who wrote the brief. The Congress enacted a decree of 3 May 1984, specifying that the recourse was not admitted to discussion for obvious lack of foundation. Informed of this decision, the petitioner wrote to the Tribunal: "In the decree, I learn that Mr. XXX has been my counsel in this case. […] I contest my defense in justice, 1) by a lawyer that I did not choose, and who never contacted me, 2) to whom I gave no mandate to defend my rights, 3) who, not having had knowledge of the documents that I would readily make available to the Tribunal, provided [other] acts that harmed me." 899 In other, more frequent cases, recourses are dismissed in limine900 or refused by the College901, in particular when the mandate given to the lawyer is absent from the file, is not written in the required form, or is not provided within the 898 PAPROCKI (Thomas J.), « Parish closings and administrative recourse to the apostolic see: recent experiences of the archdiocese of Chicago, The Jurist, 55 (1995) p. 894. (Double translation) 899 Prot. 14997/83 CA, testimony of the petitioner recounted by Jean Schlick, "Des limites de la justice administrative dans l’Église catholique,” in Praxis juridique et religion, 3, 1986, p. 127-135. 900 In practice, the mandates given to lawyers must be certified by the chancellor of a diocese, or by a parish priest who verifies the identity of the petitioner who presents himself. 901 In the case 18190/86 CA, the College rejected on 2 February 1993 the recourse of a priest against a decision of rejection of the Congress for the following reason: Negative, seu querelam nullitatis reicendam esse saltem quia propositam sine requisito mandato. 278 prescribed time limits, as provided for in Article 106 of the experimental norms902, or Article 76 of the abovementioned proper law. 4.2.4. The Witnesses The protection of witnesses is an important aspect of justice, for they dare to testify in truth. Canon 1722 explicitly refers to the protection of the freedom of witnesses, by allowing the Ordinary to keep them away from the accused, if necessary, during the duration of the criminal trial to protect them. It is no less true that many people refuse to testify in favor of a petitioner against an administrative decision of a bishop, for fear of reprisal from the latter, taking into account the executive, legislative and judicial powers he holds in his hands. In the field of witness protection, civil justice however goes much further than ecclesiastical justice, with specific provisions, such as, for example, the newsletter of the United Nations Secretary General on protection against reprisals for those who report legal violations, and collaborate in audits or duly authorized investigations903. This procedure is generally known by the name of whistleblower protection. While ensuring that it does not encourage scurrilous denouncements, the Church could perhaps draw inspiration to gather what is consistent with its own ethics. 4.2.5. The Evidences Title IV of Book VII of the 1983 Code is devoted to evidence, which is defined in the following manner in a judicial trial: Canonists describe judicial evidence as the demonstration of a doubtful and controversial fact, made to the judge through the means of legitimate arguments904. There are cases where the Tribunal nullified an administrative decision, due to a lack of evidence communicated to the person concerned: In case Prot. 31290, Father X was expelled from the Order of Saint Bruno following an accusation of sin against the sixth commandment. 902 Cf. Art. 106 of the experimental standards: The recourse must be sent to the second section of the Apostolic Signatura and must contain: […] (4) The signature of the requesting party or the lawyer provided with a special mandate, and, in this second case, the notification of this mandate, unless it appears at the bottom of the recourse itself. 903 Circular of the Secretary General of the United Nations of 19 December 2005. www.un.org/fr/documents/view_doc.asp?symbol=ST/SGB/2005/21 904 LEÓN DEL AMO [†] — JOAQUÍN CALVO, in Code de droit canonique bilingue et annoté, Wilson et Lafleur, Québec 1999, p. 1113/1894. 279 Having indicated on 11 August 1999 that he could not exercise his right of defense in the absence of communication of the evidence of the alleged facts905, the Provincial sent him on 14 December 1999 a folder with elements of evidence; but he refused to sign when he received a decree of his dismissal from the order. He made recourse, indicating that the superior had damaged his reputation. By a decision of 27 April 2000, the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life confirmed the decision of dismissal by his superior, but by a decision of 22 June 2002, the Supreme Tribunal found a violation of the law by the Congregation906. Conversely, there are cases where the administrative authority makes an illegal decision, taking care to hide the evidence of illegality. Even if the person concerned knows of the existence of such evidence, and indicates, with a high probability, the place where it is located, he will probably not be heard, because canon 1529 on the ordinary trial specifies that: Except for a grave cause, the judge is not to proceed to collect the proofs before the joinder of the issue. Regarding the difficulty of gathering the appropriate evidence, Thomas Paprocki regrets that the contentious-administrative process does not involve discussions by opposing parties, one of the merits of which would be to foster the search for truth, particularly in the absence of evidence: The absence of a hearing in the presence of the two parties requires each of between it to search for "a hearing" with the officials of the curia. […] From the point of view of the civil justice, it is abnormal that the curie committed discussions with one of the parties in the absence of the other party. Such communications are prohibited in civil justice [American]. The reason is that one of the parties may make a request or to evoke erroneous facts which are not immediately contradicted by the other party. Yet, from the point of view of ecclesiastical, this practice seems to reflect a pastoral desire to respond to the needs of the people involved907. 4.2.6. Deadlines Pope Francis speaks about the timeliness of marriage-nullity trials: 905 Ministerium Justitiae, op. cit. p. 302. Ministerium Justitiae, op. cit. p. 324-325. 907 PAPROCKI (Thomas J.), "Parish Closings and Administrative Recourse to the Apostolic See: Recent Experiences of the Archdiocese of Chicago," The Jurist, 55 (1995) p. 894. Double translation 906 280 We have decided to publish these provisions that favor not the nullity of marriages, but the speed of processes as well as the simplicity due them, lest the clouds of doubt overshadow the hearts of the faithful awaiting a decision regarding their state because of a delayed sentence908 For contentious administrative trials, the first difficulty relating to time limits is their imperative nature which, if they are not respected, can make a recourse inadmissible. In the absence of specific elements, the recourses submitted outside the time limits are effectively rejected. Sometimes the Curia admits recourses submitted outside the time limits, if the delay is not the responsibility of the petitioner: On 28 November 2011, a religious received notification of his imposed dismissal. Immediately, she asked a sister-canonist and the Chancellor of the Diocese for advice, but she did not receive help until 14 December, the date on which the procedure of the revocation request of the Superior General began. Although the period of 10 days was exceeded, the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life admitted the recourse on the grounds that she had started to act on the day she was first notified909. Sometimes, the Holy Father gives a second chance. After Sister X was expelled from her congregation, the Supreme Tribunal rejected her administrative recourse on 14 April 2014, on the grounds that it was filed on 22 September 1983, while the decree of the Congregation for Religious and Secular Institutes was dated 19 February 1983, so her recourse was long after time limit had expired. However, the Secretary of State of the Holy See permitted in the name of the Holy Father "a restoration of the limits of time to perform the recourse910". Because of this, the Congress decided that the recourse could be admitted to discussion. Many authors have treated in detail the question of time limits, such as Andrea Bettetini911, to whom we refer readers who wish to explore the question in greater depth. As to the duration of the recourse proceedings, Arroba noted 908 Idem SPEZZATI (Sr Nicoletta V.), sous-secrétaire de la Congrégation pour les instituts de vie consacrée et les sociétés de vie apostolique, courrier du 2 juillet 2012, Roman replies (2013), p. 18-21. 910 Prot 15721/83 CA, Ministerium justitiae, op. cit. p. 208. 911 BETTETINI (Andrea), « Il computo dei termini nel contenzioso namministrativo », in La Giustizia nell’attività amministrativa della chiesa : il contenzioso amministrativo, Roma 2006, Giuffrè, p. 333. 909 281 that it must be sufficient to enable the judges to obtain moral certainty with regard to the decision, while noting that justice delayed is justice denied912. In practice, we have seen that the duration of contentious-administrative recourses is on average 23 months for a decision of the Congress, and 29 months for a decision of the College, which may seem long although not all are of this opinion: The proverbial Vatican slowness does not have only negative aspects. […] Reflections without excessive promptness sometimes mean greater respect for people913. Deadlines could however be reduced considerably by the sending of fax or secure e-mail, rather than conventional mail914, as shown by Thomas J. Paprocki915: Although it has not always been used, the use of fax has helped to accelerate the international communications. Yet the fact that the disputed cases have not been solved in almost five years shows that the canonical disputes, such as those of the civil justice, can be expensive and time consuming. 4.2.7. The Cost of Justice, and the Payment of Expenses Pope Francis insisted recently that marriage-nullity trials are to be cost-free, as a sign of mercy for the faithful: Episcopal conferences, in close collaboration with judges, should ensure, to the best of their ability and with due regard for the just compensation of tribunal employees, that processes remain free of charge, and that the Church, showing herself a generous mother to the faithful, manifest, in a matter so intimately tied to the salvation of souls, the gratuitous love of Christ by which we have all been saved916 For contentious administrative trials, the proper law of the Tribunal settled, at least theoretically, the question of the cost, through legal aid917. The Pope called for an increase in legal aid in the various ecclesiastical tribunals, but implementation of this raises two difficulties. The first relates to the 912 ARROBA CONDÉ (Manuel J.) Diritto processuale canonico, Roma, 1994, p. 271/538. RATZINGER (Cardinal Joseph), « Entretiens sur la foi », op. cit. p. 78-79/252. 914 Cf. The passage on e-justice in the following chapter. 915 PAPROCKI (Thomas J.), « Parish closings and administrative recourse to the Apostolic See: recent experiences of the archdiocese of Chicago”, The Jurist, 55 (1995) 875-896. 916 FRANCIS (Pope), "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. 917 Cf. art 100 and 101 Special standards of 1968 and Articles 16, 20, 30 and 31 of the 2008 proper law. 913 282 economic component of ecclesiastical justice, which becomes problematic if we increase the number of free cases and if the ecclesiastical courts apply canon 1490 which provides, as much as possible, lawyers paid by the Tribunal. There seems to be a contradiction between the quality of justice and its cost, without other variables entering into the economic model of the ecclesiastical justice918. The second difficulty comes from the adverb "mostly" used in Canon 1490, which means that the presence of lawyers before the courts applies first and foremost to marriage-nullity cases, and secondarily to other trials. The argument raised by the Pope in favor of free justice consists in saying that this gratuity is based on the fact that sacraments are free, and therefore that justice must be free when it concerns the sacrament of marriage. Would this mean that justice must be paid for when it does not involve a sacrament? To examine this issue further, we refer interested readers to specific works like those of A. Mendonça919. We, for our part, are trying to clarify the real cost of a contentious-administrative recourse. An unavoidable expenditure involves the costs of proceedings920 and of a Roman lawyer, whose fees are sometimes considered to be excessive921, as it is appropriate to provide approximately $ 3,000, although these expenditures may be the subject of a total or partial discount, in accord with Articles 100 and 201 of the proper law of the Tribunal, depending on the petitioner’s ability to pay922. To these costs, it is appropriate to add the other expenses inherent in the procedure, which can also total an additional $ 3,000, and which are not reimbursed. They are: • the support of a canonist near the petitioner’s home, who is aware of the culture of both the petitioner and the author of the act, and can handle the recourse923 ; 918 Cf. infra, passage on e-justice. MENDONÇA (Augustine) "Justice and equiy: at whose expense?" in The Art of the Good and Equitable. A Festschrift in honor of Lawrence G. Wrenn, Washington 2002, 192-198. 920 The judgments indicate in general the destination of the fees paid in advance by the petitioner, which may be maintained for the benefit of the Tribunal: • Recourse 18881/87/CA mentions 1,500,000 lire, or 775 € • Recourse 20212/88/CA mentions 2,000,000 lire, or 1033 € Currently the price is around 1500 €. 921 GROCHOLEWSKI (Zenon) “Pregi e defetti nell’attuale amministrazione della giustizia nella chiesa”, Studi giuridici, XLV, Roma 1977, p. 175. In our opinion, it requires a minimum of 1000 €. 922Art. 100 of the proper law of the Tribunal § 1: The benefit of free application, total or partial, with the second section is granted by decree by the Cardinal Ponens, after hearing the Secretary and the promoter of justice. 923 It requires at least 1000 € 919 283 • • • • one or several trips to Rome to meet with the lawyer, not vital in theory, but very useful in practice to establish knowledge and mutual trust; the mailing of registered letters; translation costs from and into Latin; telephone charges. By adding the two types of costs, a recourse may finally cost around $ 6,000. With respect to the manner of payment, the Tribunal is flexible enough and accept payments in cash on the spot, or checks sent to the Nuncio of the country of the petitioner. 4.3. The Right of Defense, and of Vindication Several authors have studied the rights of the defense in administrative justice. P.J. Brown924 has held that the right of the defense in the Church is an essential element of Catholic doctrine, and constitutes the heart and soul of canon law925. He noted that this right is protected in a criminal trial926, but also when the rights, reputation or property of the faithful are significantly involved in contentious actions, such as under canons of 220 and 221. For Kurt Martens, it is a question of justice, knowing that: The “actors” in most of these cases are persons who have dedicated their life to the Church and depend upon the Church for their activities, remuneration, or sustenance. […] Most cases concern conflicts whereby a professional had to stop his or her activities in the Church and/or lost his/her living as a result of a decision of an ecclesiastical authority927. Here is an example, among others, when the Supreme Tribunal actually allowed the restoration of justice, nullifying an administrative act when it was felt that the right of the defense was not respected: Having entered a diocesan congregation at the age of 15, Sister S. became a nurse and made her perpetual vows in 1971. She then assumed the role of superior in several religious houses. In 1983, she was accused by another sister of homosexual acts that occurred with her in about 1976, but no witness corroborated the accusation. Nonetheless the archbishop made her resign from her order after 26 years of religious life, without being able to defend herself. In 924 BROWN (Rev Phillip J) “Groscholewski for the Defense”, 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, p135-139 925 It is explicitely quoted in canons 221 and 1227 7°. 926 Canons 1720, 1728, 1342 §3. 927 MARTENS (Kurt), « Protection of Rights… » The Jurist, 69 (2009), p. 684. 284 response to a hierarchical recourse, the Congregation for Religious and Secular Institutes confirmed the archbishop’s decision, on the basis of the accusation of the alleged victim and the strong conviction of the superior of the religious order. At the end of the contentiousadministrative recourse procedure, the Supreme Tribunal considered that the Congregation had not complied with the law, by confirming the expulsion despite the lack of evidence of the charge, and the lack of respect of the right of defense: We might well ask how someone can defend himself against a generic charge, when the circumstances of the offense are not indicated and are totally unknown to him928. Provided that administrative justice respects the general principle of the right of defense in a trial, it remains to be seen whether and to what extent, it enables the faithful to respect the right of defense against acts of the administration which are unfavorable to them, under canon 221 §1. 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. The faithful have the ability to claim their rights but they are not always listened to, and a fortiori heard. Since in general they do not know the means to defend their rights, it is not clear whether the application of this canon is sufficient to meet the 6th and 7th guiding principles for the reform of the Code of Canon Law, so that: …the rights of persons are properly defined and protected; this means that the exercise of power appears more clearly as a service, that its use is better guaranteed and abuses are eliminated, and that the legislative power, the administrative authority and the judiciary must be clearly distinguished, and will have to define adequately what organizations will have to exercise each of them. In reality, it seems to us that the restrictions gradually made on acts of administration subject to recourse do not go in the direction of the respect for the rights of the faithful. In effect, "illegal individual administrative acts," within the meaning of canon 1732, constitute a more limited scope than the "disputes arising from the exercise of ecclesiastical administrative power" that Regimini Ecclesiae Universae initially referenced, and which are found in canon 1445. In this regard, there are several types of administrative acts that we cited at the beginning of this chapter, for which the rights of defense of the faithful do not seem to be guaranteed. 928 Ministerium Justitiae, op. cit. p. 114. 285 In contentious-administrative matters, Dominica Brennan929 mentioned three conditions that must be present, in order to exercise one’s rights: • The petitioner must be a legal person in the Church. This constraint excludes de facto many private associations of the faithful legitimately constituted in the Church under canon 299, but on which the Church has not conferred legal personality as per canon 310; • The petitioner must be able to prove that one of his rights has actually been injured. In the United States, some Catholic faithful felt aggrieved by the homily of a priest, arguing about the ordination of women, a doctrine that they felt was not in conformity with Catholic doctrine. Dominica Brennan930 stated that the faithful are indeed entitled to instruction that is in conformity with Catholic doctrine, but it is not evident that in such cases they can prove that the spiritual assistance which is their due under the canon 213931, has been refused to them; • The decision which injures a member of the Catholic faithful must be admissible by an ecclesiastical court. Canon 1400932 indicates several situations when the rights of the faithful may be the subject of a trial, with an exception for "disputes arising from an act of administrative power.” In the case of the parishioners of claiming instruction consistent with Catholic doctrine from their pastor, the question arises of the competent court. It seems that this is the Supreme Tribunal, since the dispute comes from an act of administrative power, but the Tribunal may dismiss the recourse as it often does when it is manifestly unfounded. In this case, Dominica Brennan933 concluded that a homily does not constitute an administrative act, but an act of administration934, and that it is then up to the petitioner to seek an 929 BRENNAN (Dominica), « Parishioners Bringing Suit Against a Priest » in Roman Replies and CLS Advisory Opinions, (1996) 68-71, double translation. 930 Ibidem. 931 Can. 213 — The Christian faithful have the right to receive assistance from the sacred pastors out of the spiritual goods of the Church, especially the word of God and the sacraments. 932 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. 933 BRENNAN (Dominica), op. cit. 934The Apostolic Signatura has determined that its own competence is strictly limited to administrative acts which are "any provision that is specific, direct and immediate, and legally binding, emanating from an administrative body of the Church, which is derived from its administrative authority of governance for the regulation of an individual act under the good of the community. An act of administration is an act which lacks one or more of the essential 286 ordinary court under canon 1491935 which guarantees an action for each right. The example below confirms the fact that certain acts of administrative power are subject to judgment neither by the Supreme Tribunal, under canon 1732, nor by the ordinary courts under canon 1400 § 1, 1°. Following the suggestion of a poster affixed in a monastery, a member of the faithful contacted the Commission "New Religious Movements and Sectarian Trends" of the Conference of French Bishops, to inquire about an association of the faithful that he appreciates. He received a letter that he considered to be contrary to reality, and forwarded it to a member of the association. The member judged the letter to be defamatory, and filed a recourse which led to two refusals: • The Council for the Laity believed that there was no defamation, since the allegations were addressed to a single person; and • The Supreme Tribunal did not take up this argument, since the petitioner argued that the posters hanging in the monastery invite all the faithful to contact the Commission, but it dismissed the recourse as manifestly unfounded, since the letter is not, according to the Tribunal, an administrative act936. In, relying on the work of Joachim Llobell, Paola Buselli-Mondin presented an analysis of the right of defense in situations involving disciplinary measures937. She suggested that there could be situations where these rights may not be heard. Either the hermeneutical criteria contained in the principles of the reform of the Code, approved by the 1967 Synod and incorporated in the preface to the Code […] or the provisions of canons 221 and 1578, or the favor rei inserted in the nature of criminal trials and present in all procedural canons, or, finally, the natural requirements of justice, seeking that the penal administrative track, on the one hand, participate in the essential elements of a judicial trial (of the right of defense of the accused) since it involves, in the final analysis, the substantive conditions of punitive justice. And on the other hand, these requirements of justice require that the administrative path be subject to judicial control, at least regarding the legality of the measures, by an characteristics above and which thus does not involve the power of governance of the Church as such. (Double translation) 935 Can. 1491 — Every right is protected not only by an action but also by an exception unless other provision is expressly made. 936 Prot. NO 49737/14 CA 937 BUSELLI MONDIN (Paola), il diritto di difesa in ambito disciplinare, in Ius Ecclesiae, XXIII, 2011 No 3, p. 668-686. 287 independent tribunal, namely a contentious-administrative tribunal, a key element of the system of safeguarding rights938. She then discussed the particular character of the priest, whose person is inseparable from his ministry, although, she says, it is not possible to give a true right of defense to a priest without taking account of his duties toward the community, the common good of the Church and the rights of injured persons. The preliminary inquiry therefore takes a central place to allow the Ordinary to properly assess the situation, from the pastoral, administrative and criminal angles, and then to allow a true dialogue that would allows for the resolution of many of the inevitable conflicts. In a criminal trial, canon 1717 does not prohibit the Ordinary to meet with the person concerned, respecting the principle of the presumption of innocence, and it imposes cautionary rules not to compromise the good reputation of anyone. As foreseen by the Apostolic Signatura, the Ordinary may not invoke canon 223 §2 to take away from a priest the exercise of the priestly ministry by an administrative act. Before making any decision, the Congregation for the Doctrine of the Faith has the obligation to verify that the priest in question has been informed of the charge against him, so that he can defend himself. Readers wishing to study the question in greater detail can refer to the works cited, as well as the work of John Beal939. For our part, we consider that the distinction between procedures of recourse concerning individual administrative acts, and those concerning other acts of administrative power, is of such a nature as to create a confusion prejudicial to the good understanding of administrative justice by the Catholic faithful, as feared by Jean Schlick at the conclusion of his article on the limits of administrative justice: The faithful—especially if they are engaged in the fight for the rights of man—would not understand, either that they are not respected in the Church, or that in the procedures themselves, evangelical charity does not have a place940. With regard to respect for the rights of the defense, petitioners are not always of the same opinion as the ecclesiastical authorities, and so they sometimes make recourse to civil justice when they believe that the protection of their canonical rights is not sufficient: A Dutch civilian saw his role as a military chaplain withdrawn from him. He made hierarchical recourse to the Pontifical Council for the 938 LLOBELL (Joachim), Contemperamento tra gli interessi lesi e i dirritti dell’impugnato: il dirritto all’equo processo in Aa. Vv. Processo penale, cit. pp. 104. 939 BEAL (John), « Administrative Leave: canon 1722 revisited” Studia Canonica 27 (1993): 293-320, pp. 302-305. 940 SCHLICK (Jean), « Des limites de la justice administrative dans l’Église catholique » Praxis juridique et religion, 3, 1986, p. 127-135. 288 Laity, but it was dismissed. He then contacted the Civil Court of Haarlem, which held that the Council for the Laity should have at least explained why it had not reconsidered the decision of the Ordinary. He also contacted the Supreme Tribunal, which considered that the recourse was manifestly without foundation and did not admit it to discussion. He then filed a recourse against this decision, but it was dismissed by the College941. In conclusion, the procedure presents some difficulties which merit alteration, as we will be proposing in Chapter 11. It is, however, important not to focus on the difficulties, as Pope Francis recalled humorously about the Roman Curia, and as he could also say about the Bishops: There are some saints in the Curia and some that are not, and those are the ones who make the most noise. You know, a tree that falls makes more noise than a forest that grows942. It must be recognized that the procedures of hierarchical and contentious-administrative recourse will actually allow Dicasteries and the Supreme Tribunal to settle a significant number of recourses. Even if the number is relatively low (approximately 10% of the decisions of the Supreme Tribunal assert the illegality of the decision in question), the impact of these decisions is quite important in the field of prevention, since Bishops and Superiors General now know that their decisions can be challenged, and that it no longer suffices to know an influential person in a Dicastery to be able to escape canonical justice. The dove of peace in the streets of Lome (Togo) 941 942 Prot. 26129/95 CA, commented byKurt Martens, in RDC 55/1, 2005¸ p. 90. FRANCIS, Pope, interview in the plane back from Rio, Zenit.org, on 4 August 2013. 289 « La loi des hommes et la loi de Dieu », Mooc proposed by the Paris Catholic University 290 Chapter 10: Conciliation and Mediation In order to maintain ecclesial communion, the leaders of the Church normally ensure the agreement of affected parties before adopting acts of governance. This is why, in some cases, prior consultation is one of the conditions for the validity of an act943. But in practice, leaders do not always take sufficient time for consultation in advance, mostly because it is not always easy to reconcile all points of view, including when a decision involves several actors944. This is the reason why it is inevitable that tensions occur at the promulgation of certain administrative acts. The normal route for the resolution of these tensions is again one of dialogue, when the act is enacted and one of the parties concerned declares that there are difficulties in its application. This may be done in an informal manner, or in application of canon 1734, during the ex gratia recourse which aims for direct conciliation between the two parties concerned, rather than making hierarchical or contentious-administrative recourse. Authors such as Jean Schlick argue in favor of a greater involvement of the Church during the ex gratia recourse relating to administrative acts: Can we imagine in the Church an interpretation of the confirmation of an administrative act, which does not incorporate all the conciliation efforts independently of their origin and their insistent repetition, especially when they take the traditional form of an ex gratia recourse? 945 Yet, when for one reason or another946, the two parties fail to reconcile their points of view, canon 1733947 then invites the parties to use "the mediation and effort of wise persons" to find an equitable solution. 943 Canon law is filled with procedures requiring prior consultation of the presbyteral council, the finance council, of pastoral council, etc. 944 This is the case, for example, during the reorganization of parishes within the diocese, while the total number of priests decreases. 945 SCHLICK (Jean), « Des limites de la justice administrative dans l’Église catholique » Praxis juridique et religion, 3, 1986, p. 127-135. 946 One can think of the lack of time on the part of the one responsible, the lack of consideration or of mutual trust and confidence, the existence of higher interests which impose a secret detrimental to a good agreement, ignorance of the law, the intransigence of one of the parties, etc. 947 Can. 1733 §1. Whenever a person considers himself or herself aggrieved by a decree, it is particularly desirable that the person and the author of the decree avoid any contention and take care to seek an equitable solution by common counsel, possibly using the mediation and effort of wise persons to avoid or settle the controversy in a suitable way. §2. The conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the 291 Having recalled the importance of prior consultation and direct conciliation a posteriori, we will concentrate, in this chapter, on the practice of mediation to resolve the tensions resulting from administrative acts, and avoid disputes or, at least, allow the parties to reconcile before the decision of the Supreme Tribunal. First let us observe that the doctrine according to which Christians have a duty to avoid litigation is not new (cf. Mt18, 15-16), and it is not limited to contentious-administrative recourse, since it is mentioned in the section of the code pertaining to general procedures, in canons 1446, and 1713-1715: • Canon 1446948 asserts the need to avoid disputes, and provides for the use of mediation949 to reach an agreement between the parties950. • In cases where the process concerns the private good of the parties, canon 1713951 does not mention “mediation” but speaks rather of a norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind. §3. The office or council mentioned in §2 is especially to be of assistance when the revocation of a decree has been requested according to the norm of can. 1734 and the time limits for making recourse have not elapsed. If recourse has been proposed against a decree, however, the superior who deals with the recourse is to urge the person making recourse and the author of the decree to seek a solution of this kind whenever he sees hope of a favorable outcome. 948 Can. 1446 §1. All the Christian faithful, and especially bishops, are to strive diligently to avoid litigation among the people of God as much as possible, without prejudice to justice, and to resolve litigation peacefully as soon as possible. §2. Whenever the judge perceives some hope of a favorable outcome at the start of litigation or even at any other time, the judge is not to neglect to encourage and assist the parties to collaborate in seeking an equitable solution to the controversy and to indicate to them suitable means to this end, even by using reputable persons for mediation. §3. If the litigation concerns the private good of the parties, the judge is to discern whether the controversy can be concluded advantageously by an agreement or the judgment of arbitrators according to the norm of cann. 1713-1716. 949 In secular law, Charles JAROSSON defines it as: a variety of conciliations, which consists also in a process of resolution of disputes based on the search for an accord between the parties, but that requires the participation of a third party, the mediator.. 950 Cf. Can. 1659 §1. If the attempt at reconciliation according to the norm of can. 1446, §2 proved useless and the judge thinks that the libellus has some foundation, the judge is to order within three days by a decre appended to the bottom of the libellus that a copy of the petition be communicated to the respondent, giving to the latter the opportunity to send a written response to the tribunal chancery within fifteen days. 951 Can. 1713 In order to avoid judicial contentions an agreement or reconciliation is employed usefully, or the controversy can be committed to the judgment of one or more arbitrators 292 reconciliation952 or an agreement953 in order to reach a conciliation954, knowing that canon 1714 partially explains the rules that are used955. 1. Ecclesiastical Mediation Paul Vincent Kasongo analyzed in detail the methods of resolving ecclesial conflicts in the primitive Church (Mt 18, 15-17 and Co 6, 1-8), the resolution of the dispute by transaction or conciliation according to the canonical tradition, the process of finding a compromise between the two parties to the conflict through an equitable solution governed by canon 1446 of the 1983 Code, and finally, the application of the principle of avoiding disputes in marriage trials and in the context of administrative recourse956. In fact, no canon addresses mediation in Part IV on the criminal trial, because canon 1715 excludes mediation when the public good is in question. We find, however, a canon on mediation in Part V of Book VII of the code, devoted to the "procedure in administrative recourse and in the removal or transfer of pastors.” It is canon 1733957, which invites the faithful to seek a fair solution using “the mediation and efforts of wise persons." One might think that the Supreme Tribunal received a mission to promote the resolution of conflicts through mediation, but it did not. Articles 121 to 125 of the Apostolic Constitution Pastor Bonus entrust to the Supreme Tribunal of the Apostolic Signatura the responsibility to ensure the proper application 952 Greater consistency would be welcome between the terms used in canons 1446 and 1713, since, in my opinion, reconciliation or conciliation is the objective, while mediation or arbitration is the means to achieve it. 953 In arbitration, the parties are bound by the decision of the arbitrator, in contrast to mediation. 954 In secular law, Charles JAROSSON defines it as: a process for the resolution of disputes based on the search for an agreement between the parties... In the glossary of IFOMENE, 25 March 2008. According to the new Code of Civil Procedure, Art 127: "The parties can reconcile by themselves or on the initiative of a judge, throughout the proceedings." We reject the term “conciliator,” cited by Jarosson to avoid confusion with that of mediator. Jean-Pierre BONAFESCHMITT in La médiation, une autre justice, ed. Syros-Alternatives, Coll Alternatives sociales, 1992, defines it as "more often a formal process by which a neutral third party attempts, by organizing an exchange between the parties, to enable them to compare their points of view and to search, with his help, for a solution to the conflict." 955 Can. 1714 For an agreement, a compromise, and an arbitrated judgment, the norms selected by the parties or, if the parties have selected none, the law laid down by the conference of bishops, if there is such a law, or the civil law in force in the place where the agreement is entered into is to be observed. 956 Kasongo (Paul Vincent), “Normes canoniques sur les moyens d’éviter les litiges et leur application dans le contexte culturel du Congo Kinshasa,|” thesis defended on 26 January 2016 at Louvain. Summary in Studia canonica, 51/1, 2017, p. 284-285. 957 Cf. supra. 293 of all procedures that contribute to the proper administration of justice in the Church, but they do not refer to mediation: This Dicastery exercises the function of Supreme Tribunal and ensures the proper administration of justice in the Church958. The same Tribunal, it also obliged: 1° to exercise vigilance over the correct administration of justice…/...959. To perform its mission, the Tribunal conducts an annual survey of the courts of the Church960, but this investigation does not address in any way administrative justice, in which hierarchical recourses are instructed by the bishops and not by diocesan or interdiocesan Tribunals. Article 78 of the proper law of the Supreme Tribunal provides for the possible end of a dispute in the course of the trial by a peaceful arrangement between the parties, and it requires the approval of the Congress. It does not specify the role of the Tribunal as a mediator to facilitate the search for solutions. Nonetheless, the 1986 activity report of the Holy See lists mediation as one of the three major activities of the second section of the Supreme Tribunal of the Apostolic Signatura: In terms of contentious-administrative recourse, the Apostolic Signatura, from the beginning, has been in favor of intense activity of peaceful discussion between the parties so as to avoid disputes. Canon 1446 § 1 of the CIC provides that "all the Christian faithful, and especially bishops, are to strive diligently to avoid litigation among the people of God as much as possible, without prejudice to justice, and to resolve litigation peacefully as soon as possible." The intervention of the Signatura in this area has allowed for the peaceful resolution of old quarrels; and more particularly the complex controversies that occurred during the Holy Year, in the spirit of reconciliation desired by the Holy Father, and as the Code of Canon Law says in canon 1733, §1." 961 It is surprising that there is little mention of any activity of mediation in the activity reports for following years. A few cases, however, should be noted: • The 1976 report indicates: "Various cases have been resolved by the initiative of the Supreme Tribunal, which has found a way to an agreement between the parties962." 958 Pastor bonus, No 121. Pastor bonus, No 124, 1°. 960 MAMBERTI (Cardinal Dominique), Circular Letter on court activity, Rome, 30 July 2016. The initial questionnaire of 1971 (AAS 63 [1971] 480-486) was revised in 2016. 961 ASS (1985), p. 1272, translated from Italian. 962 ASS (1976), p. 543, translated from Italian. 959 294 • The 1978 report explains that few recourses follow the complete route up to the decision of the Cardinals gathered in Plenary, in particular "because they have found a peaceful solution proposed by the Signatura and accepted by the two parties963.” Here is an example of this activity of mediation: The archivist of the Diocese of Naiera, Spain, filed a recourse concerning ecclesiastical real estate, claimed by both the diocese and a religious congregation. His recourse was rejected, but the Ordinary of the diocese intervened and requested a final decision by the Supreme Tribunal. It invited the parties to seek an agreement at the local level. Discovering that this attempt was not successful, the Tribunal decided to admit to discussion the recourse lodged by the Ordinary964. In the absence of rules laid down by the proper law, we can regret however that sometimes, the Tribunal does not listen to the appeals for mediation which are addressed to it. The superior of a Carmel phoned a neighboring house, and asked the lady of the house to prevent her husband from going to the daily Mass at Carmel, and his family and friends. They filed an ex gratia recourse, asking for the reasons for his exclusion; but neither the superior of the Carmel nor the Bishop on which it depends would respond. They then filed a hierarchical recourse, and then a contentious-administrative recourse against the unwritten administrative act of the superior and, during the contentious-administrative recourse procedure, they asked the Supreme Tribunal to intervene directly or indirectly (through a Carmelite volunteer) to restore dialogue broken by the willingness of the hierarchy. The Tribunal, however took no account of this request, and made a decision of non-admission of the recourse to the discussion, for obvious lack of foundation965. One can partly explain the refusal of the Supreme Tribunal to be involved in mediation procedures, because mediation should normally take place at the diocesan or national level, to take account of the local culture and particular law. If we take the example of Senegal966, where the procedures of the administrative law of the Church are virtually ignored by the faithful, one finds that the 963 ASS (1978) p. 625 translated from Italian. Cf. Prot 12230/80 CA, Ministerium Justitiae, op. cit. p. 197. 965 Prot. 49737/14 CA, case reported to the author via www.canonistes.org 966 Testimonies collected at Dakar by the author. 964 295 use of mediation, which is part of the African culture, is often spontaneously employed to resolve controversies arising from the exercise of the executive power of the Church: • A priest got a girl pregnant. Her parents complained to the village chief. The chief intervened with the bishop, and the priest was transferred while the family of the girl was compensated; • A parish priest and his vicar were angry to the point that they would no longer talk to each other. When the matter became insoluble, the faithful called on another priest from the parish, to try to reconcile them. He was partially successful, and made a report to the bishop, who then transferred the vicar; • A dispute occurred between a diocese and a congregation about a Catholic school. The problem was resolved through the intervention of the diocesan director of Catholic education, who took the time to analyze the issue in detail, in the light of the law in force. In canon law, canon 1733 §2 provides for the creation of structures of mediation at the local level: Can. 1733 § 2. The conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind. Three major types of situations are encountered, according to the Conference of Bishops, which: • Directs the creation of councils of conciliation or mediation, and establishes the rules; • Recommends their creation by promulgating some models; • Lets dioceses take initiatives that they deem relevant, without giving instructions a priori. Let us see how the situation plays out in reality. 1.1.Ecclesiastical Mediation in France An entire book would be necessary to discuss all the aspects of ecclesiastical mediation in France. We will give an overview in the dioceses and in Catholic teaching. 296 To begin we will make some observations regarding the three main forms of resolving conflicts, alternatives to litigation: arbitration, conciliation and mediation967: • The arbitrator shall pronounce a sentence after having heard the parties, as a judge does; • The conciliator proposes solutions that he considers balanced, but it is the parties who decide to adopt them or not; or • The mediator is limited to facilitating dialogue, without deciding or proposing a solution. Here is an example that shows what it is in practice: A member of Canonists without Borders was called as a mediator between two parishioners whose feud was “poisoning the parish." The first meeting was held in the office of the parish priest who acted as a conciliator. Despite being interested in the solution that he proposed, the parties did not accept it. A new meeting was held in the presence of the mediator, and without the conciliator. At its conclusion, one of the parties proposed a constructive solution, but the other party was not yet ready to accept, and so they requested a new mediation session. From these two attempts, it is apparent that one of the interests of mediation as opposed to conciliation is the respect for a period of personal maturity of the parties. 1.1.1. Diocesan Councils of Mediation Among others, Jean Donguy concentrated on the application in France of canons 1733 and 1734 relating to mediation boards968. Here is an excerpt from his research: Nothing was put in place [in France] before 1991-1992. In fact it was only at this time that the importance of the number of lay people in the service of the Church led to reflection, which has led to the development of a statute addressing the problems of the rights and duties of employees, with recourse procedures to protect these rights. From the start, some dioceses formed their own councils of mediation based on [...] canon 1713, […] The canonical Committee of the Conference 967 The definitions can vary from one author to another. DONGUY (Jean), Application en France des canons 1733 et 1734 relatifs aux Conseils de médiation, canon law license thesis defended on June 2, 2000 at the Faculty of Canon Law at the Catholic Institute of Paris, 150 p. 968 297 of Bishops had to make some clarifications. The Conference of Bishops then announced the establishment in each diocese of councils of mediation, and has established standards to this end969. To explain the origin of the mediation boards in France, Jean Donguy connects it to the labor contracts between the diocesan associations of France and the laity, whom they employ in increasing numbers, in particular to compensate for the shortage of priests. In the early 1990’s, many diocesan managers were trying to create an ecclesial status for the pastoral leaders whom they were putting in place. In the chapter about withdrawal of the letter of mission, there was the thorny question of how to avoid conflicts, while resolving them in a fair manner in some suitable way. Some had put in place a group of reflection at the service of the pastoral leaders, and provided for mediators who can be chosen from among the members of this group. In order to avoid that decisions of the civil law from being imposed on them, they have sought for solutions within the Church970. In 1993, the General Secretariat of the Episcopate published a booklet on this theme, entitled "Laity Entrusted with a Mission in the Church971.” The document proposed that diocesan volunteers put in place a council of mediation, and as a result, 27 dioceses experimented with pilot-projects in 1994 and 1995972. They highlight two practical questions not decided by the Episcopal Conference, namely: • Whether a decision to arbitrate vis-a-vis the Bishop is mandatory or not; • The legal foundations of some of the interdiocesan mediation councils. On the basis of these experiences, the Conference of the Bishops of France decided, by a vote of the Plenary Assembly on 6 November 1996, that in each diocese a council is to be constituted, to seek equitable solutions, according to the standards established by the Conference. They are "the diocesan councils of mediation" or, as they were sometimes called at that time, mediation groups. Several dioceses have effectively instituted such mediation councils or groups, integrating or not the preliminary remarks that accompany the decree 969 DONGUY (Jean), op. cit. p. 8. DONGUY (Jean), op. cit. p. 27. 971 Laity entrusted with a mission in the Church, French document issued by the Secretariat of the National Conference of the Bishops of France, 1993 edition, pp. 15-17. 972 Five dioceses of the Poitou-Charentes-Limousin administrative regions; as well as 22 dioceses of the Central East and Midi apostolic regions 970 298 of the canonical committee of the Conference of Bishops. The first two waves of fifteen dioceses put such a council in place right away973, or shortly thereafter974. Other waves follow before and after the 24 August 1998, date of the promulgation of the decree of the Conference of Bishops which received the approval of the Roman Curia975. In August 2000, Jean Donguy specified that there still remained three dioceses whose mediation councils were under study976, while 21 dioceses had not planned to create one977, and 40 decrees of creation of councils "ad experimentum" would expire in six months. The body of designated mediators was composed of 170 persons, including 35% priests, 3 % deacons, 5 % religious, 36% laymen and 21% lay women. In general, the mediators work voluntarily, while their travel and/or training expenses are borne by the diocese. In taking stock of the results978, Jean Donguy noted: The use of mediation seems to have been […] little used above all because "it was limited to mediation of labor conflicts."Leaving aside the other sectors where mediation could be sought, for example associations of chaplains under the French law of 1901, or parish associations, those responsible can be held to be aggrieved by a (written) decision from the diocese or of the parish priest. Among the positive points in favor of mediation, note the intimate knowledge of the problems in the field, which may allow a return of useful experience to ensure that situations of conflict do not recur for reasons attributable to the ecclesiastical hierarchy. On November 3, 1998, Olivier Delgrange, secretary of the mediation group of the dioceses of Evry, Nanterre, Pontoise and Versailles, wrote 973 Chalons en Champagne, Langres, Reims and Troyes for the Northern Apostolic Region; Carcassonne, Albi, Auch, Cahors, Montauban, Pamiers, Perpignan, Rodez, Saint-Flour, Tarbes and Toulouse for the Apostolic Region of Midi; Poitiers, Angoulême, La Rochelle, Limoges and Tulle for the Apostolic Region of the Southwest. 974 Amiens, Arras, Beauvais, Cambrai, Evreux, Le Havre, Lille, Rouen and Soisson for the Apostolic Region of the North; Agen, Aire et Dax, Bayonne-Lescar and Olon, Bordeaux, Perigueux for the Apostolic Region of the Southwest, Coutances-Avranches for the Apostolic Region of the West. 975 Cf. Pastor Bonus, Art 82: The Congregation [for Bishops] ...receives the acts of [episcopal conferences] and, in consultation with the dicasteries concerned, it examines the decrees which require the recognitio of the Apostolic See. 976 Angers, Luçon, Nantes 977 Ajaccio, Aix, Bayeux, Créteil, Digne, Fréjus-Toulon, Gap, Marseille, Meaux, Nice, SaintDenis, Strasbourg, Vannes, as well as the Apostolic Centre Diodece, ie. Blois, Bourges, Chartres, Moulins, Nevers, Orléans, Sens and Tours. 978 DONGUY (Jean), op. cit. p. 114. 299 to the four bishops of guardianship to attract their attention to the methods of issuing letters of mission which, "in view of the resulting conflicts, lack the necessary rigor." 979 To find out what has happened to these councils of diocesan mediation, we conducted a quick search, referring to the literature and internet sites of the dioceses. In 2015 some dioceses, such as Nancy and Toul980, announced on their websites an interdiocesan council of mediation and provided a means to contact it. Others, such as the diocese of Saint-Denis, announced the existence of such a council, referring to its object but without specifying whom to contact. The Church, in the relations between its members and in the decisions of its leaders, must give witness to justice, fairness and the rights of everyone. It has therefore provided that when a person feels aggrieved by a decision made by one in authority, this person - physical or legal - can file a recourse before the competent authority. The council of mediation may be a first step in the search for an equitable solution981. The diocese of Charters limits mediation to the "laity in mission," writing what to do in case of conflict, but staying at the theoretical level. If a layman in ecclesial mission is aggrieved - challenging for example the reasons for the withdrawal of his letter of mission – recourse should first of all be made to the closest leaders (pastoral authority, Vicar General, etc.) to achieve, if possible, a conciliation. In case the conciliation fails, one or the other of the parties concerned or even the diocesan authority can resort to the Diocesan Council of Mediation (order of 14 May 1999). The role of this board is to avoid disputes or to avoid them by searching for "a common agreement, a fair solution" according to the provisions of article 1733 §1 of the Code of Canon Law982. As for other dioceses, they publish more or less precise references to mediation boards983, or do not publish anything. This evidence, or the absence 979 DONGUY (Jean), op. cit. Annexe II. www.catholique-nancy.fr/a-votre-service/les-services-de-leveque/les-commissions/conseilde-mediation 981http://saint-denis.catholique.fr/monseigneur-pascal-delannoy/nominations/le-conseil-demediation consulted on 11 February 2015. 982 PANSARD (Michel), Les laïcs en mission ecclésiale dans le diocèse de Chartes, www.diocese-chartres.com/fichiers/officiel/STATUTS-LME_01-2011.pdf Consulted on 8 October 2010. 983 During a search carried out in 2015, it is clear that some sites, like that of the Diocese of Digne, published the decree for the establishment of the mediation council, without comment. Others indicate whom to contact, such as Pamiers, Couserans and Mirepoix, or Angers which 980 300 thereof, does not mean the council does not exist or is inactive. Similarly, the Diocese of Poitiers announced the existence of a provincial council of mediation, while the diocese of Lyon did not reference the council of mediation as one of the councils of the bishop984, yet witnesses such as Anne-Bénédicte Hoffner believe that the actual situation is otherwise: In the dioceses that have them, recourse to the diocesan council of mediation is possible for the employee. Two persons have done this in Lyon, since its creation in 1994. With respect to that of the Ecclesiastical Province of Poitiers, created the same year, it has never been mobilized. Be that as it may, the risk that a dispute be brought someday before a civil council, or even before the criminal court judge (for discrimination, for example) is real985. For more information, it is important to refer to the work of the university institute of training in mediation and negotiation (Ifomene) in Paris, and in particular those of: • Jean Claude Lavigne986 on the practices of the advice of mediation in the dioceses of Paris, Poitiers, Versailles and Metz; • Christelle Javary in 2008, on the example of the Service AccueilMédiation (SAM) 987, • Etienne Rozé, in 2015, on mediation in the Catholic dioceses of Nancy and Toul988. In addition to the types of conflicts that he illustrated by numerous examples, Etienne Rozé recalled that the organization of structured mediation is in progress within both the Church and society in general. He considered that one of the main contributions of the mediator is his belief that a solution is possible, and that mediation within the Church is similar to the current type of mediation between businesses, in which it is appropriate to integrate ethics and cites six parish-priest mediators. Others, such as La Rochelle and Saintes, Coutances and Avranches confine themselves to citing the existence of such a council before the bishop, without giving information or specific contacts. Still others, such as Poitiers, mention this provincial council in the directory of the diocese, but not on its website. 984 The site of the diocese of Lyon makes reference to Council of the Laity in Mission, whose functions do not mention mediation, by publishing the March 1, 2007 decree ad experimentum of Cardinal Philippe BARBARIN, http://lyon.catholique.fr/?Le-Conseil-des-laics-en-mission 985 HOFFNER (Anne-Bénédicte), L'Église et le gouvernement cherchent un statut pour les laïcs, La Croix, 28 mai 2008. 986 LAVIGNE (Jean-Claude), Médiation et gestion des conflits dans l'Église catholique : les conseils diocésains de médiation. Archives, Order of Preachers (Dominicans). 987 His work is discussed in Chapter 6 relating to justice for consecrated persons. 988 ROZE (Etienne) Structures diocésaines, paroisses et médiations – réflexions à partir de la situation du diocèse catholique de Nancy et Toul, thesis for the university degree of mediator, Catholic Institute of Paris, IFOMENE, promotion 2014-15. 301 applicable rules, in this case theology and canon law. He suggested that at the diocesan, interdiocesan and national levels, the experience with the type of mediation put in place for religious (SAM) should be explored. The press presented an example without giving the results: In the diocese of Le Puy en Velay, the magazine Riposte catholique wrote that many priests and religious communities leave the diocese, and that even in circles very close to the bishop, the suffering is real and the anger contained… but barely. Some diocesan faithful wrote to the author: "I do not know what to think of this article, it looks like a war between old and modern... it is sad." To restore dialogue between the bishop and his clergy, the former rector of the cathedral of Le Puy, consecrated auxiliary bishop of Lyon, would have been called to the rescue to serve as mediator989. 1.1.2. Mediation in Catholic Education With regard to Catholic education, its 2013 statutes contain Article 83, devoted to mediation for the resolution of problems, while this article was not in the modified statutes of 1992990. In case of disagreement, even crisis, people can be accompanied in the form of mediation. It is a voluntary and confidential process guided by an independent and impartial third party; the decisions and agreements involved pertain only to the persons involved in the mediation. It must be said that, in the meantime, many conflicts have seen the light of day, forcing the Conference of the Bishops of France to intervene on 30 September 1999 in these terms: In June 1998, at the request of the Permanent Council, the Secretary General of Catholic Education sent to the bishops a sheet on the withdrawal of a letter of mission of a head of the establishment. New reflections, continued in the course of this year with the Roman offices, allow us to address to you today a final note ... to the extent that that is possible. It indicates with great precision the procedure to follow. I would like to insist: this is a process of ecclesial law, not of civil law. There are disputes between authorities of diocesan catholic education and the heads….of institutions that make reference to civil legislation 989 Salon Beige 9 juillet 2017 ; Riposte catholique, 10 July 2017. Statutes on Catholic education in France, promulgated by the Conference of the Bishops of France, 14 May 1992, supplemented, as amended, and promulgated by the Permanent Council of the Episcopal Conference on 11 March 1996 as amended by the CNEC on 23 October 1999, and approved by the Bishops of France, then Statutes of Catholic education in France of 1 June 1993. 990 302 that we bishops should arbitrate, turning incorrectly to canonical procedure. We must be watchful, when our collaborators would be tempted to use the ecclesial forum as an "ultimate weapon" to defend their cause. It is a matter of justice and also of good sense. With my fraternal respect991. The attached note of the General Secretariat of Catholic education included a paragraph on mediation, written in these terms: Outside of canonical procedure, there are diocesan mediation councils: Some dioceses have implemented a diocesan mediation council. It has to be emphasized that it is not a judicial institution, but only has the mission to find, outside of any contentious procedure, a consensus that could resolve the conflict. The referral to a council of mediation does not interrupt the time for recourse, which is still running, and thus could be exhausted992. Currently, these guidelines give rise to an exemplary achievement: Based on an experiement initiated in 2004, the General Secretariat of the Catholic Education put in place a group of institutional mediation involving professional mediators, in particular to intervene when tensions arise between a diocesan director of education and the head of an institution, or between the head of an institution and its employees, or regarding a challenge to the relocation of a school, or a contested election of a board of directors of the College. The day of mediation is priced at $530993. With respect to mediation for consecrated persons, we have referred in Chapter 6 to the "Welcome Mediation Service for Religious Life and Community" (SAM), created in 2001 by the Conference of Bishops of France. 1.2. Ecclesiastical Mediation around the World Outside of France, Kurt Martens994 made a very detailed study in the late 1990’s about legal protection in the Church, with many developments regarding mediation practices. He distinguished four situations: 991 COLONI (Michel), Bishop of Dijon, President of the Bishops’ Commission on Education, Life and Faith of the Youth, Chairman of the Bishops’ Committee of Academia and University, letter to the Bishops of France, Dijon, 10 June 1999. 992 General Secretariat of Catholic Education, withdrawal of the mission of the head of an establishment, note SG/99.1223, Paris, August 1999. 993 https://groupemediations.com/ 994 MARTENS (Kurt), la protection juridique dans l’Église : les tribunaux administratifs, la conciliation et du due Process, in Studia canonica, 36 (2002), p. 225-252. 303 • • • Sometimes, episcopal conferences order the creation of conciliation boards in dioceses and they specify the standards995; Sometimes, the obligation is reduced to a recommendation996; Sometimes, episcopal conferences indicate that they leave the creation of such councils to the discretion of the bishops997; Finally, everywhere in the world there are dioceses which have put mediation councils in place, in the absence of explicit standards from their episcopal conference998. Martens also provided concrete details on the situation in several countries, and we will summarize his remarks. In 1989, the Episcopal Conference of the Netherlands adopted a decree on the creation of diocesan councils for conflicts resulting from administrative decisions. […] In December 1989, shortly after the promulgation of this decree, the Conference decided to revoke it, apparently because of two factors: first, it was believed that ad hoc solutions were satisfactory in some cases, and secondly, it was of the opinion that no episcopal conference had introduced such councils999. Despite this change, Kurt Martens reports that only four of the seven dioceses of the Netherlands put in place such a council, but apparently they were successful, since for 1999-2000 approximately half of the thirty cases studied had a positive result1000. On 19 November 1975 in Germany, a synod of the dioceses approved a decree on mediation, arbitration and the solution of administrative conflicts1001. In 1994 in Belgium, the interdiocesan pastoral council IPB requested the creation of mediation councils. Since the bishops agreed on their usefulness, standards were published and their creation was announced in 1996 for the Flemish dioceses and for the Archdiocese of Mechelen-Brussels. In practice, only the Diocese of Bruges and the Archdiocese of Mechelen-Brussels had put in place these Councils by 1997. 995 MARTENS (Kurt) cite les trois pays du Salvador, des Philippines et du Paraguay. MARTENS (Kurt) cite l'Argentine, le Nigéria, le Panama et les Pays-Bas 997 This is the case in Bolivia, Ecuador, Gambia, Liberia, Sierra Leone, Guatemala, India, Italy, Malta, Mexico, Peru, Sri Lanka and Venezuela. 998This is the case in particular in Melbourne in Australia; Kildare and Leighlin, Ferns and Clogher in Ireland; and Aachen, Erfurt, Passau and Würzburg in Germany. 999 MARTENS (Kurt), op. cit. p. 241. 1000 MARTENS (Kurt), Administrative Procedures in the Roman Catholic Church, Difficulties and Challenges in Ephemerides Theologicae Lovanesienes, 76 (2000), p. 354-380. 1001 Cf. MATTHEWS (Kevin), « The Development and Future of the Administrative Tribunal », Studia Canonica, XVIII, (1984), p. 86. Cf. Fora abitrii Conciliationis 996 304 In 1969 in the United States1002, the story began with a double desire to increase the credibility of the Church in matters of law, and to "better protect the faithful against ecclesiastical authorities1003.” In this regard, the annual congress of the Canon Law Society of America (CSLA) adopted in October 1969 a report on fair procedures (due process) based on canons 19251004 et 19291005 of the 1917 Code. It was presented to the Episcopal Conference, which would then submit it to the Holy See. Finally, Blessed Pope Paul VI approved it with a few amendments, and so the report was published in 19711006. After the promulgation of the 1983 Code, the CSLA reviewed procedures of "due process” during its annual convention, based on the experience gained during twelve years of practice. It showed that "due process" was introduced gradually in half of the dioceses and a few religious institutes, with a majority of cases resolved out of a thousand cases addressed. The 1968 report was then revised in 1991, in order to describe three procedures for the resolution of conflicts: conciliation, arbitration and the Administrative Tribunal. Experimentation took place 1993-1995 in the Dioceses of Dallas and Portland for conciliation and arbitration. On the basis of a dozen cases treated, the evaluation highlighted a triple need: • Good advertising, to publicize the initiative and win the confidence of the community; • An office within the parish, to which the faithful can turn to get information on the process; • Competent personnel, to resolve cases at the diocesan level. 1002 MARTENS (Kurt), op. cit. p. 243-249. MARTENS (Kurt), La protection juridique dans l'Église : les tribunaux administratifs, la conciliation et le due process, in Studia canonica, 36/1 2002, p. 243. 1004 Can. 1925 § 1 As it is very desirable that the faithful avoid conflicts among themselves, the judge must urge them, when a contentious issue regarding a private interest is submitted to be decided by way of judgment, to finish the conflict by a transaction, if some hope of agreement remains. § 2 The judge can meet this duty before the parties are called to justice, or as soon as they have appeared, or at any other time when it will seem more appropriate to do so more effectively. An attempted transaction. § 3 However, it is in keeping with the dignity of the judge, usually at least, to not undertake this personally, but to commit the task to some priest, especially to those who are judges of the Synod. 1005 Can. 1929: To avoid judicial cases, the parties may also conclude a convention, by which the conflict is handed over to the judgment of one or several people, or settle the question according to the rules of the law, that they treat according to equity; the first are called 'Arbiters', the latter 'Arbitrators’. 1006 Nihil obstat for the due process, in The Jurist, 32, (1972), p. 291-292. 1003 305 Another experiment was conducted during the same period regarding the exercise of an Administrative Tribunal. The Diocese of Milwaukee examined four cases, and resolved two of them. The diocese of Saint-Paul-Minneapolis judged only one case, and the Archbishop annulled the decision. Informed of these results, the Supreme Tribunal of the Apostolic Signatura was in favor of the American initiative, but pointed out the need for approval by the Apostolic See to create an Administrative Tribunal of first instance in a country or a diocese. It followed that the procedure of American Administrative Tribunals was transformed into a "Court of Equity," by limiting it to a sophisticated form of hierarchical recourse. In Great Britain and Wales, in 1973 the Assembly of Bishops approved a report of the Canon Law Society of Great Britain and Ireland1007. This report, inspired by that of the United States, provided for a mediation procedure, in order to resolve potential conflicts between the members of the Church, indicating in the preamble that these conflicts mainly occurred between the faithful, rather than between the faithful and the authorities. The procedure, which was friendly and informal, was to appoint in each diocese at least two conciliators, in reality mediators, whose job it would be to reconcile the parties in question. In addition to the work of Kurt Martens, we found other experiences of mediation or arbitration through our reading and meetings. Similarly in the Netherlands, Six bishops who enacted the status of pastoral care workers installed an arbitration committee. It includes ten members: four appointed by the Bishops, and four appointed by the organizations representing the pastoral workers. The members designated shall also appoint a chairman and a vicepresident outside their group1008. In Canada, the bishops sought to change the tendency among the faithful to make recourse to the civil courts, without attempting to obtain justice within the Church. Here is what the Canadian Canon Law Society had to say: Through the years, the question of the protection of the rights of the faithful has been found to be at the forefront of [Canadian] canonical thought. The possibility of tackling this problem, either by the establishment of an administrative tribunal or by other means, was studied on several occasions. […] The Society has agreed not to require the establishment of an administrative tribunal, but rather to put in place 1007 Episcopal Conference of England and Wales, Conciliation procedure, April 1975, Canon Law Digest, 8, 1020-1030. 1008 VAN DER HELM (Ad), « Un clergé parallèle ? », Strasbourg, Cerdic, 1993, p.187-188/403. 306 an office for mediation, conciliation and arbitration. If the project is approved, it will still take a lot of work to establish protocols for the task, for the recruitment of staff and for the successful functioning of this office1009. As an example, the Diocese of Montreal created a diocesan tribunal ad experimentum, but finally abandoned it for the following reasons1010: 1) The priests all knew each other, and the members of the Tribunal did not have the needed impartiality to apply the law to their colleagues; 2) There were not enough people who were trained and had the spirit and the necessary independence, because everyone already knew each other; 3) Persons who were rejected by the Tribunal ad experimentum turned almost systematically to the bishop on appeal1011; 4) Recourse created tension within the diocesan Curia; 5) The one whose act prompted the recourse cannot be the person who consoles. Instead, the diocese put in place an ombudsman, with a procedure for dealing with cases, so as to reduce the caseload of the Curia and the bishop. Since we have no extensive study, we will do well to draw other conclusions, finding that the mediation procedure generally works when it is put in place correctly, but it is a complex procedure that is not a priority. 2. Mediation in Civil Society Since ecclesiastical mediation is not operational in many dioceses, and yet is useful to prevent conflicts, let us see whether it is possible to draw useful lessons from the experiences of others. 2.1. Methodes of Mediation According to mediation professionals, mediation develops because: 1009 Canadian Canon Law Society: History. www.ccls-scdc.ca/Hist_Fr001.html Interview conducted on 16 January 2015, at the day of study of the Institute of Canon Law of Strasbourg on the associative life in the Church. www.droitcanon.com/Colloque_Associations_%20janvier%202015.pdf 1011 We do not fail to notice the analogy with the numerous recourses against the decisions of non-admission to the discussion made by the Secretary or the Congress of the Supreme Tribunal. 1010 . 307 Most of the systems of conflict resolution are based on authority […] but authority has limits in contemporary society. The mediator, therefore, is not an authority: he resolves nothing, does not impose anything, prohibits little, and always ensures the freedom of the parties1012. Concretely, mediation may take very different forms allowing parties in conflict to overcome the past, by qualifying it with shared words, and to reconstruct the future by finding an acceptable solution or at least, by restoring relationships that will enable them to advance in a constructive manner. However, the role of mediator cannot be improvised. He has to learn the advantages and the limits as well as the proven principles, the necessary steps, the concrete techniques, nuanced practices and pitfalls. The methods of mediation are varied, but they require a common will of the parties to find a solution with the help of a mediator. Additionally, they meet a few basic principles that the parties first have to accept: • • • In advance, the two parties must be in agreement on the choice of a mediator in whom they have confidence, and on the method of mediation; During the mediation, the mediator should adopt an attitude of neutrality in focusing primarily on enforcing the mediation process, or get actively involved by pointing out the law and contributing to the search for solutions. However, he must continually ensure that the two parties agree to the mediation process; At the end of the mediation, when solutions acceptable by the two parties have been identified, it is important to confirm the points of agreement in writing. If no agreement has been reached, it is necessary to outline the disagreement in terms acceptable to the two parties. For a successful mediation it is necessary not to burn bridges, taking care that: 1. The parties agree on the principle of mediation and its terms and conditions; 2. The parties agree on the description of the facts, as initial points of view are often different; 3. The mediator understands the motivations of the two parties, their needs, interests and constraints; 4. All possible solutions are weighed; 5. Enough confidence is restored between the parties in order to have a true dialogue; 6. The solutions are analyzed on the basis of all of the stakeholders and the context; 1012 PEKAR LEMPEREUR (Alain), SALER (Jacques), COLSON (Aurélien), Les méthodes de la médiation, Paris, Dunod 2008, 272 p.. 308 7. The most balanced solutions are developed, and one of them is chosen and formalized. 2.2. Mediation Overview Many countries and organizations recommend mediation as a means for the resolution of conflicts. With regard to Europe, a directive of 21 May 2008 focused “on certain aspects of mediation in civil and commercial matters,” while a code of good conduct of the mediator was published on 4 July 2014 by the European Commission1013. Here are a few excerpts from the preamble to the Directive: In May 2000, the Council adopted conclusions on alternative methods of settling disputes under civil and commercial law, and stated that the establishment of basic principles in this area constituted an essential step […] Mediation can provide a solution to controversies that is economical, extrajudicial, and fast […] Member states should be able to refuse to make a binding agreement only if the content of the agreement is contrary to the law [...]1014 In 2009, the European Grouping of the Magistrates for the Mediation (GEMME) organized its first international foundations of judicial mediation, where it appeared that: in the history of humanity, most of the countries of the world inserted mediation into their judicial system. […] At the outcome of this historic event, the participants wished to remain in contact, and created the International Conference of Mediation for Justice. In France, mediation is a practice used in education, trade, administration, banks, insurance companies, social organizations, etc. It is included in the judicial system in civil, criminal, and administrative matters, and envisaged for criminal cases. In order to facilitate a relationship, to transmit information, to ameliorate suffering, or to put an end to a dispute, mediation has become, at the end of the 20th century, a point of reference. For example, the French Code of Civil Procedures includes an entire title devoted to mediation. In administrative law, the Council of State organized a symposium on 17 June 2015, called "Mediation and Conciliation before Administrative Jurisdiction1015" in partnership with the Order of Lawyers of Paris 1013 www.ombudsman.europa.eu/fr/resources/code.faces#/page/1 Directive 2008/52/EC of the European Parliament and of the Council, the Official Journal of the European Union of 24 May 2008, p. 136/3 to 136/8. 1015 Title VI: Conciliation and Mediation, Art. 127 to 131-15. 1014 309 and the European Grouping of the Magistrates for the Mediation (GEMME France), whose report begins with this statement: Even if they respond to increasing and unknown needs, mutual-agreement procedures have been insufficiently developed in administrative matters1016. With regard to practical implementation, the Direction of Legal and Administrative Information (DILA) published a series of information sheets about alternative methods for the settlement of conflicts (MARC) by specifying that they "are intended to respond to these malfunctions of justice." Obstruction, slowness, cost, complexity, distance are some of the criticisms made regularly by litigants against a judicial order which no longer has the necessary material means to cope with the increase in litigation. […] At the opposite of the court trial, the MARC’s allow for a mastery of the handling of conflicts, and express the desire to reach an amicable solution to the dispute1017. A study conducted in 20031018 told us that at this time, nine-tenths of the references to mediators came directly from the parties, and 58 % of the cases assigned to justice conciliators in 2003 led to conciliation. Consultations with a view toward conciliation have increased by 8 % per year on average since 1993, and in 2003 they represented 118,700 businesses. Compared to the number of cases dealt with by the courts (489,000 cases completed in 2003), the activity of justice conciliators is far from negligible, even if we think that all the cases in which they are directly involved would likely not have been presented in court or before local judges. The study also told us that: The justice conciliators are most often men (86 % of conciliators), and they are relatively old, since 80 % of them are over the age of 60, and 35% are over 70. […] 86% of the conciliators are currently retired […] a little more than half of the conciliators working in 2003 had occupied these roles for less than five years, 30% for 5-10 years, and nearly 20% for over ten years. While conventional mediation presents encouraging results, it is not the same for mediation in criminal cases. In effect, The French Directorate of Criminal Affairs and Pardons notes that "criminal mediation remains stable (34,865 in 2004 as opposed to 34,077 in 2003). Often used in litigation related to "personal conflicts,” mediation in criminal cases, in the face of the increasing di- 1016 Consulted on 21 December 2016 on the site of the Council of State. www.conseil-etat.fr www.vie-publique.fr/politiques-publiques/juge-justice-proximite/reglement-conflits 1018 POUTET (Christiane), « L’activité des conciliateurs de justice en 2003 », Infostat Justice No78, Paris November 2004. 1017 310 versity of the so-called third way measures, is considered more expensive, even less successful in its results, and is marked by a failurerate that is not negligible and by delays in execution that are more consistent. […] In fact, the 16 March 2004 pamphlet reserved its use for offenses committed in close relationships. Finally, family mediation is the subject of specific provisions in the French Civil Code (exercise of parental authority, divorce), but it remains little used. In effect, a study of the Department of Justice shows that in 2003, family court judges had recourse to family mediation measure in 0.7 % of family affairs with minor children that they have had to deal with. Consequently, French professionals gathered in the Professional Chamber of Mediation and Negotiation1019 published a manifesto for the right to professional mediation, of which this is an extract: The object of this Manifesto is to adopt professional mediation as a prerequisite to judicial action in civil, commercial, and labor matters as a fundamental right. This new law, resulting from the evolution of personal development, allows for the exercise of free decision. It is associated with a duty to respond favorably to a request for mediation before any judicial procedure. This determination is the outcome of the observation that there is an alternative to "conflict management" which maintains adversity. This alternative is the resolution-track through the promotion of others1020. Additionally, they considered that the conditions necessary for the implementation of the right to mediation are: a professionalism based on appropriate training, a code of ethics1021, and a system of mediators who are independent of the authorities involved. On 11 September 2014, the French Minister of Justice presented the main themes of the judicial reform ''J21 - Justice of the 21st Century'' to the heads of court gathered at the Court of Recourse in Paris, and then to the trade-union organizations welcomed at the Chancery. This project is structured around three axes aimed at constructing a justice that is closer to citizens, and more effective and more protective of them. Mediation is classified in the second category of promoting alternative modes of dispute resolution, as indicated by the Minister of Justice1022: 1019 http://cpmn.info/wp/ accessed 16 February 2015. www.mediateurs.pro/ accessed 16 February 2015. 1021 Code of Ethics and Professional Conduct of Mediators: consulted on 16 February 2015 on http://fr.wikimediation.org/ 1022 TAUBIRA (Christiane), 15 actions pour la justice au quotidien. Press release of the Ministry of Justice, 11 September 2014. www.justice.gouv.fr/publication/j21-15actions.pdf 1020 311 Justice has for its first mission the appeasement of social relations. Conciliation and mediation are by nature designed to contribute, but the structures which propose them are disparate and poorly coordinated. In order to identify and then to simplify the existing system, to define the status and role of mediators and conciliators, and determine the method of funding settlements of conflicts, an Interministerial Mission for the evaluation of offers of mediation and conciliation will soon be put in place. […] This assessment will help to initiate a national public policy which is currently non-existent, which can be animated by a National Council of Conciliation and Mediation. It should better integrate justice conciliators with courts. As to whether mediation is applicable to administrative law, the President of the Bar of Paris, Ms. Christiane Féral-Schuhl, responded positively in her budget for 2013: Again, mediation has its place before the Administrative Court, in a relationship of constant force between those administered to, and the Administration1023. In conclusion, we hold that the practice of mediation is useful for the resolution of conflicts in civil society, and it allows for the relief of congestion in courts other than criminal ones. 2.3. Mediation in Christian Denominations In other Christian denominations that do not have canon law and a structured judicial system like that of the Catholic Church, the methods of amicable resolution of conflicts, such as mediation, are often more developed. Here is an example taken from a symposium which was attended by the Church of the Awakening of Villeurbanne, where Pastor Angelo Pace has launched training on Relational Health. The only place where there is no conflict is in the cemetery. What is specific to the Christian approach is not the absence of conflict, but rather the way to resolve it. […] Talking to each other is often sufficient to resolve problems. It must be encouraged. […] If dialogue is not enough, and the positions become irreconcilable, mediation becomes a solution1024. 1023 VIART (Jean-Paul), Médiation et Justice : bilan d'une année prolifique www.affiches-parisiennes.com/mediation-et-justice-bilan-d-une-annee-prolifique-3627.html#ixzz3T24tWDJ9 1024 OTT (Hervé), SCHWEITZER (Luis), ROGNON (Frédéric), reported by Bénévent TOSSERI, in “Les protestants mettent les conflits sur la table,” in La Croix, n° 40962, 28 November 2017. 312 Jean-Luc Leibe1025 a member of the Prevention and Management of Conflicts Service within the Baptist Federation, asserted: Mediation has always existed in all times and in all environments and societies. Traditional societies have maintained a centuries-old tradition of mediation. The Church finds traces of its practice since its origins. […] It has always been that the Bishops confided traditionally to priests a mission of mediation between their parishioners. […] It is in the USA and Canada that mediation emerged in the 1970’s, firstly in the consumer sector, and then in judicial and family disputes... These included, the example, the mediation program in Ontario (Canada), conducted by the Mennonite churches, called the “Victim Offender Program” in the area of criminal justice. Thanks to this program, victims and aggressors are trying to speak to each other. But it is in the USA (Atlanta), where we find the first practices of mediation (1974) in the formal framework of judicial mediation-conciliation. Mediation took root in Europe in the 1980’s. All fields, including religious, are aware of the expansion of this phenomenon. Thus, the Code of Canon Law, promulgated by Pope John Paul II in 1983, suggests that every diocese put in place an institution of conflict resolution (canon 1733). This achievement, reflecting the Church’s theology of conflicts after Vatican II, finds its application in the 24 August 1998 decree of the Conference of the Bishops of France, defining "diocesan mediation councils.” It is in this period that the news highlighted some mediators. An example was the pastor Jacques Steward, President of the FPS, in 1988, who was one of the mediators in the conflict in New Caledonia. On the island of Ouvéa, we find Michel Rocard, Prime Minister at the time, who had the mission of restoring confidence between the belligerents1026. This testimony reveals another aspect of mediation as contained in the Social Doctrine of the Church. It invites civil society to prevent and resolve conflicts. The Catholic Church is not alone in this area; it would be enough to cite only 1025 LEIBE (Jean-Luc), pastor of the Baptist Evangelical Church (FEEBF) in Grenoble, and holder of a DESS in mediation (Paris I, Panthéon-Sorbonne). 1026 LEIBE (Jean-Luc), « Le temps de la médiation, un espoir de réparation ? » Les cahiers de l’école pastorale, n° 79 – 1st Quarter 2011. 313 the mediation of Pope Leo XIII between the Armenians and the Ottoman Empire1027, or, more recently, that of Pope Francis between Israelis and Palestinians1028. In addition to the Holy See, Joseph Ndi-Okalla1029 mentions the role of the San Egidio Community in the field of mediation. It has largely contributed to the resolution of internal conflict in Mozambique, by promoting the signing of a peace agreement between the warring parties on 14 October 1992 on the premises of the Community, after 10 years of civil war. In Algeria, the Community created a political platform in 1994, bringing political leaders together. In addition, mediation or conciliation1030 are familiar to Protestants, as can be seen in the Reformed Evangelical Church of the canton of Vaud, in Switzerland: Active since 2010 within our church, the mediation committee is composed of three members trained in mediation, who are appointed for five years. The Commission is at the disposal of lay members and church ministers in the event of conflicts, tensions, issues of communication within a parish, a parish council, a regional council, or another body in link with the Reformed Evangelical Church in Vaud. Mediation is a voluntary process by which the mediators accompany the people toward a solution developed in the presence of the parties. This service of the Church is free and we will come to your villages, to your parishes. For an initial meeting, you can contact us by phone or by e-mail to simply be listened to, or ask for an individual or group session. After this meeting, the Commission will be in contact for a second time with the party or parties in conflict1031. But let us return to the heart of our subject, focusing on the prevention and resolution of conflicts internal to the Catholic Church. In his 2002 article on legal protection in the Church1032, Kurt Martens drew these conclusions: In some countries, it was understood that the absence of administrative tribunals in the Church must be corrected. That is why we can see 1027 RUYSSEN (Georges-Henri), La Santa Sede e i massacri degli Armeni 1894-1896, Edizione Orientalia Cristiana, Pontificio Istituto Orientale, Roma 2012, 274 p. 1028 Following the failure of mediation by the US Secretary of State John Kerry, who did not spare his efforts over nine months (August 2013-April 2014) to obtain a peace agreement between the two parties, Pope Francis has invited Shimon Peres and Mahmoud Abbas to come to pray with him at the Vatican, 8 June 2014. 1029 NDI-OKALLA (Joseph), Le deuxième synode africain face aux défis socio-économiques et éthiques du continent, Karthala Editions, 2009, p. 189. 1030 OTT (Hervé) deplores the fact that one generally sees conciliation rather than mediation. 1031 http://eerv.ch/qui-sommes-nous/synode/la-commission-de-mediation/ 1032 Cf MARTENS (Kurt), « Protection of Rights: Experiences with hierarchical recourse and possibilities for the Future », The Jurist, 69 (2009) p. 646-702. 314 that projects are being implemented everywhere. But as permission must be obtained from the Holy See, and more particularly from the Apostolic Signatura, to install a new system of courts, we look for alternatives. In practice, this means that it is limited to projects encouraging conciliation or mediation, based on the free will of the parties concerned. Not only is there risk of getting bogged down in lengthy procedures, but also that of standing beside a tribunal having the jurisdiction to require religious authority to respect the law. And is it not after all an application of the principle patere legem quam ipse fecisti? 1033 After having rejected the practice of arbitration by a third party who may not dictate to the bishops, we have found that mediation was a track allowing effectively "to avoid as much as possible disputes within the People of God, and to resolve them as soon as possible in a peaceful manner," is as recommended by canon 1446. So that this develops harmoniously in the Church, Etienne Rozé recommended: • A culture of a spirit of benevolent confrontation. In effect, a procedure too “familiar” on the part of the authorities can lead to illegality1034 ; • Clarification of functions and their interdependence, by clear letters of mission; • Accountability of the actors; • Anticipation of conflict situations by the popularization of canon law and the administrative justice of the Church; • Structuring of mediation in church circles, both at the canonical and spiritual levels. 1033 The phrase comes from Roman law, and can be translated as "You suffer the consequences of your own law." 1034 TOXE (Philippe), « Quel principe de légalité en droit canonique », L’année canonique LVI, 2014-2015, p.234. 315 Church of St. Georges des Gardes (Maine-et-Loire), destroyed in the summer of 20061035 1035 Source = Observatoire du patrimoine religieux. 316 Chapter 11: Prospects for Development How can a member of the Catholic faithful respond when, rightly or wrongly, he feels like a victim of an administrative act issued by the ecclesiastical hierarchy, and has the impression that he is facing a wall of his quintuple power of teaching, sanctification, legislating, governance and justice? Should he make amends? Certainly, if he knows what to do. Should he ask, in order to "make known to the pastors of the Church their needs, especially spiritual ones, and their desires,” as per canon 212 §2? Such is the purpose of the ex gratia appeal. Should he seek to understand by making recourse to wise persons, if necessary? Still, it is necessary that mediation bodies are operational. Should he make a renunciation? Perhaps with regard to his own will, but without abandoning the common good of the Church or of society, or else he will become bitter. Should he revolt against the injustice? Perhaps, but as a first step, and within the limits of Christian obedience. Should he remain silent? Jesus did so before Herod, and in part before Pilate, but not before people of good faith. Should he break his ties with the Church, by joining another branch of Christianity, for example, or even a different religion? Scripture tells us the opposite: "May my tongue stick to my palate if I do not remember you” (Ps. 137, 6), and "You are Peter, and upon this rock I will build My Church” (Matt. 16, 18). Should he seek justice from the State? The teaching of Paul to the Corinthians opposes it (cf. Cor. 6, 5). Should he make his voice heard by means of social communication? The faithful have the right and sometimes even the duty to do (c. 212 § 3), but Jean-Claude Eslin asks: "Does speaking harm the Church? 1036" Should he seek justice from the Church? This is the last option, which we have been studying in these pages. In December 2010, when the Pontifical Council for Legislative Texts was working on a draft reform of Book VI of the Code of Canon Law on Criminal Sanctions, Mgr. Arrieta evoked the double concern of (1) facilitating the implementation of sanctions when they are necessary to ecclesial communion, 1036 ESLIN (Jean-Claude), « Parler fait-il du mal à l’Église? » Conference on 13 January 2011 in the Catholic Strasbourg residence hall, summarized by Christine Muller, in Revue Elan, Strasbourg 2012. 317 and (2) protecting the right of defense of the faithful, the importance of which had been observed by the Second Vatican Council1037. Leaving aside the question of sanctions, it is important to analyze the main expectations resulting from the previous pages, about the scope of application and the operation of the administrative justice of the Church, and to propose a synthesis of the most timely and more legitimate measures, in the spirit of canon 212 §3. It seems to us essential that the Church seek to prevent conflicts that arise internally and to resolve them itself, mindful of the recommendations that the Apostle Paul made to the Christians of Corinth, who relied on the courts of the Gentiles (1 Cor. 6, 7). In effect, Because of the lack of adequate procedures within the Church itself, one finds that the faithful seek justice elsewhere; with the state courts, which will offer them the protection they seek1038. It is this, of which the Supreme Tribunal itself makes note: On 31 January 1980, the provincial superior of the Community of the Holy Redeemer (Saint Savior) asked Brother " Peter " to abandon an action before the civil court concerning the sale of the premises of the seminary. He considered that this sale was unjust and did great harm to the community, and that it was his duty to prevent the sale. The superior, supported by the Chapter of the Institute, offered him a new assignment and prompted him to reconciliation with his religious order. Brother Peter refused the de facto new assignment, and renounced the civil trial but made recourse before the Congregation for Religious and then to the Supreme Tribunal. Six years later, on 7 June 1986, the Supreme Tribunal decided not to admit this recourse to discussion after lengthy developments regarding the civil courts, of which here is an extract: The petitioner was free to denounce the irregularity of the sale and resulting damage to the Superior General or to the Congregation for Religious and Secular Institutes, but not to civil justice1039. 1037 ARRIETA (Msgr. Juan Ignacio), Cardinal Ratzinger and the Revision of the Canonical Penal Law System: A crucial role, www.vatican.va/resources/resources_arrieta-20101202_en.html 1038 MARTENS (Kurt), Protection of Rights: Experiences with hierarchical Recourse and possibilities for the future, The Jurist 69 (2009), p. 251 1039 Cf. cause Prot 15573/83 CA Ministerium Justitiae, op cit. p. 165-186. 318 Should every recourse of the Catholic faithful to civil justice be condemned? The answer is not always positive, since there are cases where the Magisterium recommends to victims to denounce priests to civil authorities, in particular in the case of sexual abuse of minors1040. When the faithful feel misunderstood by both the ecclesiastical hierarchy and by ecclesiastical justice, the existence of which they are not always even aware, it falls to them to appeal not to the ecclesiastical or civil courts, but to public opinion, targeting first of all the faithful of the Catholic Church, but in reality the whole of society. In fact, there are cases where faithful Catholics have chosen to bring into the public square their disputes with the Church, for example by publishing books or informing the press. Again, this practice is not always reprehensible, since, according to Bishop Scicluna, then President of the special College special for the consideration of recourses of priests accused of serious crimes, "it is denunciation that will save the Church," and "bishops and cardinals should see the film Spotlight. 1041” In any case, one of the ways to prevent the faithful from turning to civil justice or public opinion is to improve and to publicize the canonical procedures for the resolution of conflicts internal to the Church, to the five stages of prevention, prayer, amicable resolution, hierarchical recourse, and contentious-administrative recourse. Other authors before us have expressed the hope that the administrative justice of the Church might contribute to better ecclesial communion. Such is the case, in particular, of Sergio Aumenta, who has made three main proposals1042: 1. Deepen and complete current legislation relating to administrative action; 2. Improve the procedure of contentious-administrative recourse, especially in creating diocesan or national Tribunals; 3. Replace the obligation of hierarchical recourse by an alternative of hierarchical recourse or contentious-administrative recourse. 1040 Concerning the use of the civil justice in cases of clerical sexual abuse of a minor, situations vary according to the country. In some places, bishops are legally obliged to have recourse to the secular judicial authority. In other countries, civil law does require them not to do so. In this last case, according to Msgr. Charles Scicluna, the Congregation for the Doctrine of the Faith does not force the bishops to denounce priests to the civil authorities, but it encourages them to invite victims to lodge a complaint. It also asks bishops to provide these victims with all the assistance necessary. 1041 Alateia, 18 février 2016, http://fr.aleteia.org/2016/02/18/spotlight-un-film-que-tous-lescardinaux-et-eveques-devraient-aller-voir/ 1042 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 173-177, Translated from Italian. 319 For our part, we will rearrange the prospects for development around the three following axes: • Prevent contentious-administrative recourse by improvement of the administrative law of the Church, and by the creation of national forums of mediation and settlement of administrative disputes; • Improve the process to manage unresolved conflicts, by regulating the field of administrative justice; • Promote informing the faithful, after having specified the conditions for doing so. 1. Preventing Recourse To some extent throughout the world, the Catholic faithful are directed to the civil courts to settle their internal church conflicts. The faithful [of the Congo] sometimes have recourse to state courts to try to settle their disputes. This approach is justified by the fact that the officials of the particular Churches have not organized practical ways and means to enable the faithful to effectively settle their conflicts within the Church1043. It also happens that the bishops lodge a complaint before the secular justice against priests of their diocese: On 14 October 2010, a bishop complained to the correctional court against one of his priests on the grounds of “abuse of trust and diversion of funds.” The priest defended himself by claiming that he used this money for the needs of the parish. The correctional court of Evreux nevertheless condemned the parish priest to pay a 15,000 Euro fine. The Bishop then declared: “No one can rejoice in the conviction of a priest. For all that, the President of the Association of the Diocese noted that his questioning of the parish priest about the finances of his former parish was legitimate.” Once the legal deadline to appeal expired, the Bishop removed the parish priest, and consolidated his parish with a larger one. The parish priest remained on the spot until June 2011, thanks to the suspensive effect of three appeals to the Supreme Court. Five years later, the Bishop suspended the priest1044. However, when disputes arise between Christians, the texts of the New Testament invite us to search for an amicable solution rather than to go to court. 1043 Kasongo (Paul Vincent), Normes canoniques sur les moyens d’éviter les litiges et leur application dans le contexte culturel du Congo Kinshasa » thèse soutenue recension dans Studia canonica, 51/1, 2017, p. 284-285. 1044 https://www.riposte-catholique.fr/en-une/suspense-de-labbe-francis-michel 320 Therefore, if you bring your gift to the altar, and there recall that your brother has anything against you, leave your gift there at the altar, go first and be reconciled with your brother, and then come and offer your gift. Settle with your opponent quickly while on the way to court with him. Otherwise your opponent will hand you over to the judge, and the judge will hand you over to the guard, and you will be thrown into prison. (Matthew 5, 23-25) Even if the context is not the same, canon law constantly exhorts us to avoid going to trial. However, society has changed a lot since the Second Vatican Council, with a great increase in education, which makes men more aware of their rights. 1.1. Promote Mediation Procedures at Diocesan Level We have seen that it is a priority to promote procedures for mediation, to help resolve "the disputes arising from the exercise of the ecclesiastical administrative power.” Today, it seems to us necessary to develop a culture of mediation in the Church, and revitalize the mediation bodies put in place at the level of dioceses, religious congregations or Catholic education, thanks to the following actions: • Publicize the existing ecclesiastical bodies of mediation, so that the faithful can have recourse, and reactivate those that are dormant; • Have clerics, religious and laity trained in mediation as members of these bodies, ensuring that they have a minimum of autonomy in relation to the authority likely to be involved in recourses1045; • Put in place, at the level of the episcopal conference, a team of specialized mediators responsible for assisting diocesan mediation bodies, for the different types of dispute that they encounter; • Experiment with online mediation; • Allow, in case of failure, for return to a mediation body within the episcopal conferences; • Specify the procedure of mediation, in such a way that it has a beginning (the request of the faithful to the mediation commission) and an end (at the end of a defined period or a verification that the mediation has been completed), which extends to all the deadlines for hierarchical recourse to the Curia. 1045 In the power of governance, canon 135 §1 distinguishes between legislative, executive and judicial powers. It is therefore necessary to ensure that mediators exercising a function intermediate between the power of the executive and the judiciary are not totally wedded to one of them, as is strongly recommended by the seventh guiding principle for the reform of canon law. 321 This perspective also seems to go in the direction desired by Pope Francis, to move the Church closer to the faithful, as he has said about marriage trials: The desire for this reform is fed by the great number of Christian faithful who, as they seek to assuage their consciences, are often kept back from the juridical structures of the Church because of physical or moral distance. Thus charity and mercy demand that the Church, like a good mother, be near her children who feel themselves estranged from her1046. It is indeed possible to apply the argument of the Pope to administrative justice, knowing that there are Catholic faithful who feel excluded because of an administrative decision of ecclesiastical authority that they do not recognize as fair. In this perspective, we recommend clearly the establishment of national and/or diocesan mediation bodies, accompanied by the following measures: • Ensure that Article 124 of Pastor Bonus1047 allows for the vigilance of the Supreme Tribunal over diocesan councils of mediation, and in the opposite case, modify the Article to this effect; • Revise accordingly Article 110 of the proper law of the Supreme Tribunal1048, so that it can apply to medication councils; • Develop and adopt a charter for mediation councils, which takes into account the good practices of those which have worked with success. Conversely, we are more reserved on the constitution of national administrative Tribunals, as will be discussed later. 1.2. Specifying Administrative Law In analyzing why administrative justice in the Church is effective only in a limited number of cases, Kurt Martens recalled that the Tribunal considers the illegality, but not the legitimacy of the Act, and that this illegality is difficult to prove when the administrative procedures have little oversight1049. In support of his assertion, he specified that the rate of positive use is more frequent for the transfer of parish priests, because the procedure is more precise, and it 1046 FRANCIS (Pope), Apostolic Letter 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. https://w2.vatican.va/content/francesco/en/motu_proprio/documents/papa-francesco-motuproprio_20150815_mitis-iudex-dominus-iesus.html. 1047 Art. 124— To the same court it also pertains: 1° To exercise its vigilance over the correct administration of justice… 1048 Art. 110. § 1. The annual report or the decisions of a tribunal being submitted for examination, the Secretary presents timely advice or remarks. 1049 MARTENS (Kurt), Protection of Rights… », The Jurist, 69 (2009), p. 684, Double translation. 322 is easier for the Tribunal to find a violation of procedure than a violation of law. Should we conclude that it would be appropriate to clarify the procedures for the promulgation of administrative acts in Book I of the Code on General Norms? That is the opinion of Sergio Aumenta1050, who proposed deepening and complementing current legislation relating to administrative action. We have not studied the question enough to give a relevant opinion on this proposal, which is apparently judicious, provided, however, that it does not limit the ecclesiastical hierarchy to procedures that box them into administrative tasks, to the detriment of their own missions.Therefore let us confine ourselves to recalling a few of the paths mentioned above, aimed at guaranteeing the rights of the faithful, so that their contribution to the common good and to ecclesial communion can be assessed by experienced canonists: • Consider an oral, non-written administrative act as an administrative act subject to recourse1051 ; • Specify arrangements for the application of the criteria of ecclesiality, with regard to the levels of recognition of associations; • Require the Congregation for the Doctrine of the Faith to clarify the degree to which it has given right of reply to the persons concerned, before proposing to the Holy Father the approval in forma specifica of its decisions; • Clearly recognize the status of a specific administrative act relative to decisions of the Prefect or the Secretary of the second section of the Supreme Tribunal, when they decide not to admit to discussion a contentious-administrative recourse, and provide for a mediation procedure to avoid the current situation of systematically negative recourse to the College; • Require that diocesan or congregational mediation commissions address the requests of the Catholic faithful who come to them on the occasion of disputes that are administrative in nature; • Require that hierarchical authorities mention the possibilities of mediation and recourse in the singular administrative acts that they enact. 1050 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 173-177, translated from Italian. 1051 COCCOPALMERIO (Card. Francesco), letter Prot 14182/2013 of September 3, 2017 to the author, translated from the Latin: "From the formulation of canon 37 of the CIC, it follows that the written form has been imposed by the supreme legislator for the liceity of an administrative act in the external forum and not for its validity, except in the cases expressly provided for by the law (ex: cc. 54, 156, 179 §3, 190 !3, 193 §4, etc.). In this regard, an oral decision by an ordinary must be regarded as an administrative act." 323 2. Improving Administrative Justice We have seen that the creation of the second section of the Supreme Tribunal has resulted in substantial progress for the protection of legal rights of the Catholic faithful in the face of the ecclesiastical hierarchy1052. Yet, a number of canonists have regretted that the reform provided for in the draft Fundamental Law of the Church has been largely truncated, and they make various proposals to remedy the situation. These proposals are divided around four axes that we propose to discuss below: • Regulate the field of administrative justice; • Simplify the procedure of contentious-administrative recourse; • Decentralize the procedure; • Employ e-justice. 2.1. Regulate the Field of Justice In addition to the broadening of positive administrative law, it is appropriate to regulate the field of contentious-administrative justice, adapting the procedural law. According to Sergio Aumenta, the reform of administrative justice indeed remains incomplete because the Supreme Tribunal is not competent to judge the merits of administrative acts, but only their legitimacy. Since 1971, the jurisprudence of the Supreme Tribunal has reaffirmed in various circumstances the incompetence of the Tribunal to examine the merit of the questions submitted to its judgment1053. A first step in this direction was made on the occasion of Pastor Bonus, which expanded the jurisdiction of the Tribunal to the repair of damages, with its Article 123 §2, but is it necessary to go further? Among others, Paul Hayward responded positively: Since the repair of the damage request the recognition of the rights of the applicant, it would seem desirable that such a recognition is based in a formal way, to give a coherent and logical of litigation remediesadministrative: cancellation of the administrative act, declaration of the rights of the applicant, repair of the damage caused to this right. 1052 AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 173. 1053 AUMENTA (Sergio), op. cit. p. 102, note 208. 324 The current legislation explicitly includes the first and the third remedy. It now remains to give formal recognition to the second for the protection of the rights is complete1054. It also seems to us that the response is positive to the extent that the legislator could usefully clarify how the faithful can claim their rights (c. 221 §1) as opposed to "disputes arising from an act of ecclesiastical administrative power" (c. 1445), when these disputes are not the subject of "individual administrative acts" within the meaning of canon 1732. Ulrich Rhode headed in the same direction when he stated: In the case of a future revision of administrative law, it would seem desirable that there be a new reflection on the different types and levels of governments on behalf of the Church and that there be clearer rules about procedural issues and processes. And so after such a revision, the local authorities (such as the parish priests and local religious superiors) should not be submitted to an exaggerated formalism. A revision would then be an opportunity to plug the gaps in the law in force, which may cause new uncertainties1055. Ernest Caparros proposed a method to analyze the current field of justice with a view to improving it: It would therefore be advantageous to analyze the whole sphere of the conditio libertatis of the faithful, making a parallel with the freedoms that the Church calls for vis-à-vis civil society. It is apparent that the actions which are an obstacle to the freedoms of the faithful, and are not motivated by the common good or focused on the dimensions of the Communion, can lead to a denial of justice1056. Other canonists, as Jean Werkmeister, suggested that the Church draw on the good practices of civil justice to see what might usefully be adopted: The Church also, after all, could benefit by being a little more like the states of law, a "Church of law.”A number of recent cases have reminded us of this (theologians being silenced, intolerance of Christian communities toward each other, sometimes even wars of religion). It is not enough to preach the rights of mankind in the world; the Church must also give the legal means to enforce this in its own institution. 1054 HAYWARD (Paul) Changes in ecclesial administrative justice brought about by the new competence of the « Sectio Altera » of the Apostolic Signatura to award damages » Ius Ecclesiae, 5 (1993), p. 643-673, Double translation. 1055 RHODE (Ulrich), “Attività amministrativa svolta senza esercizio di potestà di governo” in Periodica 106 (2017° 359640. 1056 CAPARROS (Ernest), « Réflexions sur la charité pastorale et le droit canonique », L’année canonique, 37, 1995, p. 259-276. 325 Canon law can help to eliminate injustice in the Church. The disregard of the law leads inevitably to injustice1057. Currently, 88% of people interviewed believe that French justice is too complex, and 95% believe that it is too slow. All the same, 51% of citizens who have had direct contact with justice believe that it works well. In this context, the organic law of 8 August 2016 and the ordinary law of 19 November 2016, relative to the project "I21" aim to make justice more effective, simpler, more accessible and more independent. Some of the proposed measures could possibly be transposed to the administrative justice of the Church, or at least an assessment could usefully be carried out: • Support services for to the petitioner: Officials could usefully provide advice to the baptized on the different procedures of ecclesiastical law. • Authorization of collective actions by which the victims of a same dispute may be represented by an association of the sector concerned until the judgment: such actions could be envisaged for administrative decisions concerning several members of the faithful, as, for example, the renovation of parishes, reduction of churches to a profane use that is not inappropriate, or the recognition of associations of the faithful. • Promotion of alternative methods of dispute resolution, thanks to preventative and free conciliation for cases of lesser importance, and experiments in mandatory prior mediation before an administrative judge. • Development of a web portal1058 designed for petitioners, which allows them to be informed of their rights, the approaches and procedures with the prospect of offering online tracking of their case. The path proposed by Caparros is to reread the balance sheet of fifty years of administrative justice in the light of the principles of the revision of the Code of Canon Law that we will cite again: 6°) Due to the fundamental equality of all the faithful and the diversity of offices and tasks, based on the hierarchical order itself of the Church, it is appropriate that the rights of persons are properly defined and protected; this means that the exercise of power appears more clearly as a service, that its use is better assured and abuse disappear; 7°) So that these principles may be properly implemented in practice, particular care must be taken to adjust the procedure pertaining to the protection of subjective rights; that is why, in the revision of the law, there will be attention to what thus far was lacking in this field, namely administrative recourses and the administration of justice; to 1057 WERKMEISTER (Jean), Introduction au droit canonique, TEC 92 B, Faculty of Theology, University of Strasbourg, ed. 2000. 1058 www.justice.fr 326 this end, the various functions of the ecclesiastical power, i.e. the legislative power, the administrative authority and the judiciary must be clearly distinguished, and it will be necessary to define adequately what organizations should exercise each of them. In addition to the revitalization of mediation procedures, and the extension of the procedure of contentious-administrative recourse to all disputes arising from an act of ecclesiastical administrative power, three other paths for improvement are: • Simplification of the recourse procedure, to make it more accessible; • Decentralization of the procedure; • Use of the practices of "e-justice.” 2.2. Simplify the Recourse Procedure Having provided a broad overview of the practices of ecclesiastical administrative justice since 15 August 1967, one can ask whether it should stay there, or propose a few paths for development of ecclesiastical administrative justice. Maria-Chiara Ruscazio considered that development of the structures is necessary each time that the context changes, which is the case of Christianity since Vatican II. What is commonly accepted about evolutionary theory has made us familiar with the principle according to which any organization that does not adapt to changes in its environment will die. We can say that this is also true for the right of expression of these particular individual living organisms, which are the social groups. A fortiori, this applies to the law of the Church, whose 2,000 year diffusion and universal vocation oblige it to be confronted by a large number of sociocultural contexts and different legal systems1059. Certainly, it is not a question of reform without an evangelical goal: Reform is not an end in itself, but a means to give a true Christian face, to foster an evangelization that is more effective, to promote an ecumenical spirit that is more fruitful, to encourage a more constructive dialogue with all1060. 1059 RUSCAZIO (Maria Chiara), « Quelques réflexions canoniques à propos de l’objection de conscience du fonctionnaire public » in Revue de Droit canonique, Strasbourg 2015, tome 65/1, p. 409. 1060 FRANCIS (Pope), 12 February 2015 Greetings of the Holy Father to Cardinals Gathered for the Consistory. http://w2.vatican.va/content/francesco/en/speeches/2015/february/documents/papa-francesco_20150212_saluto-concistoro-cardinali.html 327 As for what is desirable, let us look with Laurent Villemin1061 at four conditions posed by Cardinal Congar for a reform that is truly Catholic: a) Maintaining in all cases the primacy of charity and pastoral concern, b) Remaining always in communion, c) Being patient and avoiding ultimatums, d) Seeking not the introduction of a novelty by a mechanical adaptation, but rather a true renewal by a return to principles and tradition. The thesis of Laurent Dabiré concludes on a note of satisfaction, in favor of ecclesiastical justice which is characterized, unlike that of the State of Burkina Faso, by the simplicity of its distribution of competences, by flexibility in procedure, and by modest costs of justice, all of which make the ecclesiastical legal forum easy to enter and canonical action diligent enough. However, he also refers to four difficulties, of which the first two can be controlled by a simplification of procedures: 1) Geographical remoteness of the judge (inadequacy of the judicial coverage), 2) Costs of justice, which marginalize the majority of would-be petitioners with inadequate financial recourses, 3) Ignorance of the law, especially for the illiterate, and 4) Commitment to ancestral customs. In addition to these difficulties, it seems to us that a little more simplicity in language would be welcome: The Church must constantly recall that she cannot leave simplicity behind…. At times we lose people because they don’t understand what we are saying, because we have forgotten the language of simplicity and import an intellectualism foreign to our people. Without the grammar of simplicity, the Church loses the very conditions which make it possible “to fish” for God in the deep waters of his Mystery1062. 2.3. Decentralization of Recourse Procedures Some canonists, such as Jean-Pierre Schouppe1063, Dominique Letourneau1064 and Patrick Valdrini1065, believe that the absence of lower-level administrative 1061 VILLEMIN (Laurent), died on 10 August 2017, « Le retour de la réforme dans l’Église catholique », Transversalités, No 137, avril-juin 2016, p. 60. 1062 FRANCIS (Pope) Warm hearts, Instruction, Rio de Janeiro, 30 July 2013: Speech to the Bishops of Brazil and Latin America. 1063 SCHOUPPE (J. P.) « Le droit d’opinion et la liberté de recherche dans les disciplines ecclésiastiques » p. 184. 1064 LE TOURNEAU (Dominique), Droits et devoirs fondamentaux des fidèles et des laïcs dans l’Église, Montréal 2011, Wilson et Lafleur p. 227/396 p. 1065 VALDRINI (Mgr. Patrick), la résolution juridique des conflits dans l’Église, in Documents épiscopal No 17, nov 1986. 328 tribunals "may be a danger for the concepts of fundamental rights and duties of the faithful, in so far as they can remain nothing more than a monument of abstract art.” The Synod Fathers therefore hoped for the creation of real administrative tribunals in the Church, either to defend more effectively the rights of the faithful from possible violations, or to make administrative activity more transparent, avoiding suspicions of arbitrariness by ecclesiastical administration1066. The first administrative tribunal having been created in 1967 within the Supreme Tribunal, various difficulties have been raised against an extension at the level of the dioceses and in particular: • Lack of priests and, a fortiori, of priests trained in canon law, sufficiently available to sit in such courts as judges, lawyers, and trained promoters of justice, with a minimum of autonomy in relation to the hierarchical authorities likely to be involved in the recourse; • Structuring that is tricky to understand, between mediation and hierarchical recourse before the Roman Curia; • Lack of experience even in allowing a coherent jurisprudence. Little by little, a consensus is being established to create these courts on an optional basis, at the level of the episcopal conferences1067: The maximum legal protection, deriving from the current norms, also assumes the gradual and optional creation of administrative courts at the level of episcopal conferences. Their absence is likely to continue to deprive the faithful of effective protection1068. Today, the position taken by the Holy See continues to plead in favor of a decentralization of administrative justice in the Church: It is not advisable for the Pope to take the place of local Bishops in the discernment of every issue which arises in their territory. In this sense, I am conscious of the need to promote a sound “decentralization.” 1069. Such decentralization would, moreover, head in the direction of ecumenism, since the 2007 Declaration of the Joint International Commission for Theological Dialogue Between the Catholic Church and the Orthodox Church, 1066AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 71, translated from Italian. 1067 Despite the option being permitted by the Code, we have no knowledge of such courts being put in place with the agreement of the Supreme Tribunal. 1068 SCHOUPPE (Jean Pierre) « Le droit d’opinion et la liberté de recherche dans les disciplines ecclésiastiques » p. 184. 1069 FRANCIS (Pope), Apostolic Exhortation Evangelii Gaudium 16. 329 known as the Ravenna Declaration, has been said by theologians such as Laurent Villemin that it is difficult to make the primacy of universal jurisdiction of the Pope accord with the ecclesial fullness of each local Church and its groupings at the regional level. Is it not for the regional communion of the Churches and their bishops to deal with this issue first, given that recourse to the See of Rome is not a right of recourse in contentious cases? 1070 Is it perhaps appropriate to reopen the debate about the creation of an administrative tribunal for each episcopal conference or each language, in order to relieve the work of the Supreme Tribunal, and to facilitate respect for administrative justice in the Church? In any case, such a measure seems to be compatible with canons 149 §2 and 1400 §2 of the 1983 Code, and it would be facilitated by the first fifty years of experience of the second section. It still remains to put this experience at the disposition of these courts, which is one of the roles that the secular world calls "e-justice.” 2.4. Using E-Justice Faced with the need to modernize, in order to provide better services to complainants at an equal or even lower cost, secular justice mobilizes more and more of the technologies of information and communication. The result is the portals of what is now called "e-justice,” at the level of a jurisdiction, of a State or of a region of the world, as well as "electronic procedures" that allow for the acceleration of procedures and significantly reduce the costs. In our opinion, the Internet site of the Supreme Tribunal could usefully publish in various languages the information needed by the Catholic faithful, such as the proper law of the Tribunal or the list of accredited canonical advocates1071. 1070 VILLEMIN (Laurent),”Synodes et primautés" a course of ecclesiology at the Théologicum of the Catholic Institute of Paris, 2016. 1071 On 14 September 2016, the Tribunal website offered information in two languages: Italian, the presentation of the Tribunal as well as the speech of Pope Benedict XVI to the participants in the Plenary Assembly of the Supreme Tribunal of the Apostolic Signatura (4 February 2011); and in Latin, an extract of Pastor bonus, Art. 121-125; the Apostolic Letter Antiqua Ordinatione (21 June 2008) and Decretum generale executorium de actis iudicialibus conservandis, 13 August 2011 (Prot. N. 42027/08 VT). No information is given in French, English, Spanish, Portuguese, or German, although the Tribunal has the texts in these languages. www.vatican.va/roman_curia/tribunals/apost_signat/index.htm 330 Illustration: E-justice Portal of the European Union, in 23 Languages 1072 The Supreme Tribunal already referred to the use of digital technologies in the 1990’s, such as fax or e-mail: A document sent by fax or by mail is not accepted as signed original document; therefore, if a copy of the recourse is sent by fax or by mail, the original document must be sent within the same deadline. Each time that a recourse is sent to the Signatura, it should be done such that the party making the recourse has evidence that it was sent within the fixed time-limit (e.g., by registered mail or courier service) 1073. Undoubtedly it has no knowledge of current technologies such as digital identity, electronic signature, or electronic stamps, which are in particular the object of mandatory application in Europe1074. While some of them have already been successfully experimented with1075, these technologies could usefully be used to shorten the deadlines for the transmission of contentious-administrative proceedings, under more secure conditions than the current practice1076. 1072 https://e-justice.europa.eu/home.do?action=home&plang=fr consulted on 14 février 2015. DANEELS (Cardinal), notice of the Second Section: Recours contentieux-administratif devant le Tribunal suprême de la signature apostolique, March 2013. 1074 In particular Regulation No 910/2014 called "eIDAS" of the European Union on the electronic identification and trust services for electronic transactions within the Internal Market, adopted on 23 July 2014. 1075 GARGARO (Paul), “Use of Internet by the Tribunals of GB & Ireland”. CSLN 183/15, 6569. 1076 DUCASS (Alain), « L’union numérique européenne : l’impact potentiel du règlement européen eIDAS sur les échanges euro-africains », Réalités industrielles, August 2016, p. 24-27. 1073 331 The same goes for cloud computing, which compensates for the lack of computer equipment and trained personnel in dioceses and courts, thanks to techniques of electronic management of documents, and facilitating the establishment of electronic procedures likely to save precious time for all. An example is given in France with tools such as SAGACE, where clerks provide advocates with passwords allowing them to consult a specific folder, avoiding many telephone calls to the Tribunal to find out if such and such a document was received, and many postal mailings to transmit all the files. SAGACE Extranet of the French Administrative Courts1077 Other, less experimental practices such as "video conferencing in the Tribunal1078”, collaborative tools1079 or Artificial Intelligence1080 could also be evaluated. To begin with, the mediation practices in the Church could probably draw upon the work of the laboratory of cyberjustice at the University of Montreal, which has undertaken to "compile and evaluate all the initiatives of online dispute-resolution currently available around the world." It could also draw on the twelve online mediation sites, which are distinguished from others by their relevance, the quality of their design, their features and ease of use1081. 1077 www.conseil-etat.fr/fr/sagace/ consulted on 19 March 2014. Collective, “La visioconférence dans le prétoire” Les cahiers de la justice 2011, 2. 1079 Secure collaborative tools are necessary with data hosted in a private cloud. 1080 D BOURCIER « L’acte de juger est-il modélisable ? » in « e-justice », opus cité, p. 37-53. 1081 Although these initiatives are unique and, in this regard they are different, they are all primarily a set of specific characteristics justifying relevance. Some of them are illustrated by the quality of their design, their effectiveness or their usability (eQuibbly, Modria, People Claim, SmartSettle, RisolviOnline et Virtual Courthouse), while others, in addition to the benefit of these qualities, are integrated into important and credible companies (Ebay Resolution Center, Paypal Resolution Center) or within the academic community (PARLe). What is more, three of these initiatives have emerged as particularly innovative, in the sense that they are fully 1078 332 Without going too far afield, pilot experiments, such as the updating of the online database of contentious-administrative case law linked to this book1082, promote access to case law for canonists and, in the first place, for lower courts when they will be created. It seems to us that these measures go in the direction desired by the Second Vatican Council, when it boasted about interest in means of social communication (Inter Mirifica) and the necessary modernization of work-methods in the Dicasteries (Christus Dominus 9). 3. Developing Information and the Formation of the Faithful Even broader than access to justice, including the right to a fair trial, with a court and an independent and impartial judge, as well as the right to a public trial of a reasonable duration, Laurent Kabiré addressed access to law which, in addition to judicial information, also involves knowledge and an explanation of law. In this regard, he concluded his thesis by giving a clean bill of health to ecclesiastical justice in comparison to that of the State of Burkina Faso; but he indicated that "it is the information necessary for the knowledge and assimilation of law which is the default," and he proposed "the introduction of teaching modules on the law in the school system of the state, as well as in structures of ecclesial training1083." We have seen that the lack of information on the part of the faithful constituted an important obstacle to the exercise of administrative justice of the Church. Sergio Aumenta expressed this difficulty in these terms: The fact that the object of the recourse presented to the second section mostly involves the resignation of religious and transfers of priests argues in favor of the thesis, according to which even the possibility integrated into the judicial system in their jurisdiction (eCourtroom Federal Law, Money Claim Online and Possession Claim Online). In short, the majority of these twelve initiatives had a set of attributes that was particularly interesting and, from a functional perspective, very advantageous, namely: 1. The sleek and professional presentation of a home page; 2. The conviviality and the aesthetics of each page of the platform; 3. The use of visual cues on the platform; 4. The simplicity of use of the platform; 5. The ease of access to the relevant information (conduct of the process, help topic, policy on the management of personal data, etc.); 6. The possibility to test the platform, particularly in allowing users to not give personal information; 7. The fact that the conduct of the process is quickly and easily understandable by users; 8. An expeditious handling of files; 9. A high level of security (and the mention of this fact on the site); 10. The availability of the identity and qualifications of the persons likely to settle the dispute; and 11. The identification of the main partners of the platform in the bottom of the page. 1082 www.canonistes.org espace professionnel. 1083 DABIRE (Mgr Laurent), L’accès à la justice dans l’Eglise et dans l’Etat au Burkina Faso, Rome 2005, Pontificia Università Lateranense, p. 26 et 103/224. 333 to use [administrative justice in the Church] is totally ignored by the vast majority of the baptized, even of practicing Catholics. […] The protection of the rights of the faithful, including the laity, requires that they are aware of the possibility that ecclesiastical law offers them to defend themselves before the courts of the Church, and that the exercise of this faculty not be made too heavy because of the physical, cultural or psychological distance of the petitioner to the competent Tribunal1084.. Having admitted that it is important to promote ecclesiastical justice among the faithful, it is not a question of doing so in all conditions, because not all recourse to justice is necessarily consistent with the doctrine of the Church. Indeed, in his Apostolic Exhortation Amoris Laetitia, Pope Francis denounced an abuse of individual freedom that can result in inappropriate legal claims by the faithful against the Church: The just desire to see our rights respected turns into a thirst for vengeance rather than a reasoned defense of our dignity1085. It could also be applied to some of the faithful who make recourse out of self love, or to some members of the ecclesiastical hierarchy who don't forgive the errors, real or alleged, of those whom they perceive as their subordinates, and which make it a matter of principle rather than engaging in dialogue. To be able to specify in what conditions it is advisable to promote ecclesiastical administrative justice, it is appropriate to respond to five prerequisite questions: 1. 2. 3. 4. 5. Is it legitimate for the hierarchy to impose sanctions? Is it lawful to resort to the use of ecclesiastical justice? Is it possible to resort to the use of ecclesiastical administrative justice? Is it desirable to use ecclesiastical justice? Is it just to resort to the use of ecclesiastical justice? 3.1. Is it Legitimate for the Hierarchy to Impose Sanctions? Entirely devoted to sanctions, Book VI of the Code of Canon Law begins with canon 1311, which responds in part to our question: Can. 1311 The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions. Normally, sanctions are applied by the penal route, in terms of a trial which protects the rights of the defense. We have seen, however, that canon 1342 1084AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 124, translated from Italian. 1085 FRANCIS (Pope Apostolic Exhortation Amoris Laetitia, Rome, le 19 March 2016, No 105. 334 allows the ecclesiastical hierarchy to inflict sanctions by extrajudicial decree. This process becomes dangerous when a certain anti-legalism or an absence of canonical culture causes: …an ignorance (involuntary or voluntary, "dishonest, passive or influenced," according to traditional terminology) with regard to the law, so that ecclesial actors ignore the law and are not concerned about the norms of canon law, the more so as they know that the lack of understanding of this rule is not punishable with invalidity, but only with illiceity1086. In his analysis of this canon, Mgr. Fred C. Easton1087 insisted that the extrajudicial route is not put on the same level as the judicial route, and stressed that canon 1402 of the 1990 Code of Canons of the Eastern Churches contains restrictions which are not included in the 1983 Code1088: six conditions must be met for the imposition of sanctions by the administrative channel: 1. It must not be an offense, the resolution of which is reserved to the Holy See; (cc. 1394-1395); 2. Prior dialogue must take place to search for solutions, in accord with canon 13411089; 3. Objective reason must prevent the holding of a criminal trial and, for example, the impossibility of constituting a criminal court in the diocese1090; 4. The evidence of the offense must have been clearly made during the preliminary investigation; 1086 TOXE (Philippe), « Quel principe de légalité en droit canonique », L’année canonique LVI, 2014-2015, p.235. 1087 EASTON (Mgr. Fred C., JCL), « Determining which Procedure to Follow When There is an Alleged Crime which is not a More Grave Delict », Roman Replies (2013) p. 113-117 1088 Canon 1402 of the Code of Canons of the Eastern Churches: 1 Any contrary custom being reprobated, a canonical penalty must be imposed through a penal trial prescribed in cannons 1468-1482, with due regard for the coercive power of the judge in the cases expressed by law. 2 If, however, in the judgment of the authority mentioned in 3, there are grave causes that preclude a penal trial and the proofs concerning the delict are certain, the delict can be punished by an extrajudicial decree according to the norm of cannons 1486-1487, provided it does not involve a privation of office, title, insignia or a suspension for more than one year, demotion to a lower grade, deposition or major excommunication. 3 This decree can be issued, besides by the Apostolic See, within the limits of their competence, by the patriarch, major archbishop, eparchial bishop and the major superior of an institute of consecrated life who has ordinary power of governance, all others being excluded. 1089 Can. 1341 — An ordinary is to take care to initiate a judicial or administrative process to impose or declare penalties only after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender. 1090 The author indicated that such a clause is not admissible in the United States, and we could probably say the same in Europe. 335 5. The sentence imposed must be moderate1091; 6. The sentence must be proportionate to the situation, in accord with canon 13171092. Subject to these conditions, we should remember that it is legitimate for the hierarchy to impose sanctions to protect the common good of the Church, but with mercy, as Pope Francis observed, when he reviled excessive rigidity: The law was not made to make us slaves, but to make us free, to make us sons1093. If the hierarchy remains inactive, or if it is the hierarchy itself that creates a scandal, the other faithful cannot but act: Si If nobody is in the shelter of an alternative example, the duty of other believes is to act to limit the adverse testimony, and not to remain silent1094. As they do not necessarily have to the power of governance in the Church, the question is then whether they must, and can, make recourse to justice. 3.2. Is it Lawful to Use Justice? In theory, the right to legitimately claim the rights which they enjoy in the Church, and to defend them before the competent ecclesiastical forum according to the law, constitutes a fundamental right of the Catholic faithful, as per canon 221 § 1 of the Code of Canon Law and canon 24 of the Code of Canons of the Eastern Churches. Yet in practice, Philippe Toxé considered that this lawful character is not always perceived as such: A sociologist of law could explain how, in an ecclesial society marked by speech that deprecates the juridic norm in the name of mercy and equity, the use of legal channels of recourse risks being perceived as a non- 1091 The 1983 Code indicates that this is not a question of perpetual penalties, while the CCEO specifies that it pertains to penalties of one year at most. 1092 Can. 1317 — Penalties are to be established only insofar as they are truly necessary to provide more suitably for ecclesiastical discipline. Particular law, however, cannot establish a penalty of dismissal from the clerical state. 1093 FRANCIS (Pope) “The suffering of the "rigid" one who does not know Mercy or tenderness,” Homily of 24 October 2016 at the House of Saint Martha. 1094 MONNET (Marie) La source théologique du droit, Toulouse 2017, Presses universitaires de l’Institut catholique de Toulouse, p. 205/442. 336 evangelical legalism, a lack of obedience, a crime against communion or a suspicious irreverence toward the authorities and their pastoral care1095. Ernest Caparros noted the same difficulty, but concluded in favor of the liceity of recourse: There are church circles which do not have the tendency to guarantee rights or to assume the risks of freedom. In these environments, claims concerning these rights and freedoms, based on justice, may be perceived as violations of or challenges to freedom. The reality is quite different: a relationship of justice always strengthens authority and makes people more responsible, whereas arbitrary gestures without the appearance of justice lead to the loss of authority1096. To keep alive the identity of consecrated life in the face of current sociocultural changes in Africa, Sr. Scholastica advocates mainly for the development of formation of postulants and professed religious. We can only support this proposal, extending it to the clergy and laity, to teach them in a comprehensive and honest way how to manage internal conflicts through dialogue and mediation, without omitting the possibilities of recourse within the Church to prevent situations such as Ntima Nkanza described: Let us bring aid to the culture of vindication, to the violent language which leads to a mistrust of animosity and resentment. 3.3. Is it Possible to Make Recourse to Justice? Father Lombardi recalled the Church’s recent evolution in the field of justice: In recent years, a juridic and penal legal system has been developed in the Vatican, to make it more comprehensive and at the forefront of today’s need to confront illegality in different areas. We cannot declare intentions, and establish standards, and not be consistent by putting them into practice, by pursuing those who do not observe the law1097. In the contentious-administrative field, the present work has shown that it is indeed possible to resort to the use of administrative justice when a right is violated by a particular decree, and the paths of amicable resolution are inoperative. We have seen, however, that there was a series of exceptions that sometimes prevent recourse to ecclesiastical justice: 1095 TOXE (Philippe), « Quel principe de légalité en droit canonique », L’année canonique LVI, 2014-2015, p.247. 1096 CAPARROS (Ernest), « Réflexions sur la charité pastorale et le droit canonique », L’année canonique, 37, 1995, p. 259-276. 1097 https://fr.zenit.org/articles/vatileaks-2-un-proces-quil-fallait-faire-pour-prevenir-le-retourde-telles-affaires/ 337 • • • • For acts approved in forma specifica by the Roman Pontiff; For general decrees having implications on the rights of the faithful; For unwritten administrative acts; For legitimate but unjust administrative acts. We have also seen that various factors could prevent the faithful from resorting to the administrative justice of the Church, and in particular: • Lack of awareness of their rights and obligations; • Difficulty in collecting evidence; • Silence and secrecy of the hierarchy; • Complexity of recourse procedures. 3.4. Is it Desirable to Use Justice? The answer is clearly in the negative, since canon 1733 urges aggrieved persons to take care to seek an equitable solution by common counsel. However, the legislator has recognized that this route is not always possible, and so he provided for the possibility of both hierarchical and contentiousadministrative recourse. Thus, the Holy See recognizes the usefulness of some processes: This disclosure of confidential documents required a strong reminder of responsibility in the world of the Vatican, awareness of the law, and the will to apply it. […] Yes, it was necessary that the trial be held, in particular to reflect, and prevent the return of these matters. […] The decision combines "justice" and "clemency.” […] The process has been "a step ahead […] toward transparency, truth and justice1098.” By analogy, we think it desirable for ecclesial communion that the faithful initiate contentious-administrative recourse, when the search for friendly solutions has failed, and concern for justice and mercy guides the parties concerned. A mediation, arbitration or a trial is also needed to bring out the truth when two of the Catholic faithful do not reach an agreement on what is true and fair: A charge can be true or false. Otherwise, there would be no need for a trial1099. 1098 LOMBARDI Federico SJ, reported by Anne KURIAN Zenit,7 July and 30 August 2016. TURKSON (Card Peter Kodwo Appiah) « Un accusa puo essere vera o non vera. Altrimenti non si rarebbe bisogno di un proceso » in Corrosione, Combattere la corruzione nella Chiesa e nella società, Milano Rizzoli, June 2016. 1099 338 In addition, jurisprudence guided by these recourses may be useful for the evolution of canon law. As is the case of the Rota in the field of marriage, the development of the jurisprudence can also contribute decisively to legislative evolution, in helping the legislator to complement the system of administrative justice1100. 3.5. Is it Just to Resort to Justice? The answer to this fundamental question is not as unequivocal as the previous ones, because for Christians, justice is first an attribute of God, and then a virtue that men are urged to look for, like wisdom: "Justice and justice alone shall be your aim1101.” In the Bible, a few people are considered just: Abraham1102; Zachariah and Elizabeth1103, the parents of John the Baptist; Joseph, Patron of the Universal Church1104; and the centurion Cornelius1105. None of them, however, made recourse against decisions of their contemporaries, while they always sought the common good and communion. In fact, the Gospel does not encourage Christians to resort to trials, but on the contrary, it proclaims blessed those who are accused because of their faith: Blessed are you when people hate you, and when they exclude and insult you, and denounce your name as evil on account of the Son of Man1106. Do we have to conclude that the Catholic faithful should prefer resignation and silence to administrative remedies, when they are faced with injustice on the part of ecclesiastical authority, so as to preserve the communion? Saint John Paul II seems to go in this direction, with regard to conflicts arising in the life of married couples: When one has been offended or disappointed, forgiveness is possible and desirable, but nobody said it is easy. The truth is that "Family communion can only be preserved and perfected through a great spirit of sacrifice. It requires, in fact, a ready and generous openness 1100AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 124, Translated from l'italian. 1101 Deutéronome, 16, 20. 1102 Abram put his faith in the Lord, who credited it to him as an act of righteousness. (Gen 15.6). 1103 LUKE 1, 6. 1104 Joseph her husband, was a righteous man (Matt.1, 19). 1105 Cornelius, a centurion, an upright and God-fearing man, (Acts, 10, 22) 1106 LUKE, 6, 22. 339 of each and all to understanding, to forbearance, to pardon, to reconciliation. There is no family that does not know how selfishness, discord, tension and conflict violently attack and at times mortally wound its own communion: hence there arise the many and varied forms of division in family life.1107.” In general, the Holy Father has encouraged Christians to accept humiliations, in order to conquer freedom: "No to the "religion of falsification," contrary to the humility of the Gospel, and yes to true Christian freedom. […] Vindication comes through humility and humiliation, because humility never comes without humiliation1108. To differentiate between the positive attitude of the struggle for justice, and the negative attitude of revenge, psychologist Véronique L. 1109 distinguishes the search for the truth from obsession over what is true. In other words, the pathological functioning of paranoia searches for the flaw in the other, allowing himself to be led by an obsession with the true; while a healthy person can make the distinction between his share and that of the other, and search for communion. Jesus gave us a lesson on this subject, with the parable of the splinter and the beam, which could be usefully applied to conflicts in the Church: Why do you notice the splinter in your brother's eye, but do not perceive the wooden beam in your own eye? How can you say to your brother, 'Let me remove that splinter from your eye,' while the wooden beam is in your eye? You hypocrite, remove the wooden beam from your eye first; then you will see clearly to remove the splinter from your brother's eye1110. In the field of administrative recourse, Jean-Pierre Schouppe explained that they are allowed, but not always just: Recall that the existence of a right is not a dispensation from ever practicing charity, nor does it automatically lead to the implementation of relatively "aggressive" means, such as filing an administrative 1107 JOHN-PAUL II, Apostolic Exhortation Familiaris Consortio (22 November 1981), n. 21: AAS 74 (1982), p. 106. 1108 FRANCIS (Pope), ho Homily of 11 October 2016, House of Saint Martha. 1109 Witness of marriage of the author. 1110 MATTHEW, 7, 3-5 340 recourse or an action in justice. Ecclesial life offers a range of alternatives that are significantly more pastoral and user friendly, allowing a trial to be avoided1111. To know what is just, let us appeal to Saint Alphonsus Liguori, patron of moralists and a Doctor of the Church: Saints, when they are accused wrongly, do not excuse, unless this is necessary to avoid harming one’s neighbor with a scandal. If you receive an affront, endure it with patience; this is the mark of real humility1112. In this regard, if we have the ability to suffer in union with Jesus for the good of the Church, and to forgive by heaping burning coals on the heads of our persecutors real or presumed, this is without doubt the solution that is most Christian and more beneficial for restoring communion. This path of prayer and suffering, accepted in love, soothes and makes us able to speak in truth with the ecclesiastical hierarchy, without being an accessory to injustice, real or perceived. Let us remember this statement in the Gospel of Matthew 18, 15-17: If your brother sins (against you), go and tell him his fault between you and him alone. If he listens to you, you have won over your brother. If he does not listen, take one or two others along with you, so that every fact may be established on the testimony of two or three witnesses. If he refuses to listen to them, tell the church. In the same sense, canon 223 §1 urges the faithful to consider the common good of the Church before undertaking an approach aimed at exercising their rights of recourse against an administrative act considered illegitimate. Certainly, the faithful are not always able to assess properly the common good in situations of injustice that they suffer, but if they are in good faith, Cardinal Kasper believed that this is worth much more than indifference: But who would not have tensions, even conflicts that exist in this regard [the sensus fidei]? Manifestations of opposition do not represent the worst; after all, they constitute a kind of dialogue and communication, although it is not the best. Much more serious is the absence of communication, the non-mutual consideration, the disinterest, the 1111 SCHOUPPE (Jean-Pierre), « Le droit d’opinion et la liberté de recherche dans les disciplines ecclésiastiques » p. 159. 1112 DE LIGUORI ((Saint Alphonsus), La sainteté au jour le jour, Etampes 2000, Clovis p. 213, with an introduction of the Apostolic Penitentiary from 5 July 1831: "Any Catholic can, in full safety of conscience, follow the instructions of Saint Alphonsus Liguori, because his works have been approved by the Holy See after a careful review. Thus it is true to say that the doctrine of Saint Alphonsus is healthy and perfectly consistent with the Gospel.” 341 tendency leading away from each other. This may also constitute a hope. In any case, it is a starting point for responsible pastoral ministry1113. To conclude, it seems indeed fair to make hierarchical recourse, or even contentious-administrative recourse, when the paths of dialogue have been exhausted, and there is a risk that the community be injured by the injustice committed or presumed. Let us remember, however, that obtaining a favorable judgment is not an end in itself: A sentence in favor of a party will not be synonymous with victory, but a means of preserving communion in favor of the restoration of the truth1114. 3.6. Is it Necessary to Promote Administrative Justice? In the light of the vision provided by moral theology, each can form his own opinion as to whether or not to promote the administrative justice of the Church among the Catholic faithful, knowing that canons 221 §1 and 223 give them this possibility, and make it even a duty that this promotion might head in the direction of the common good of the Church and, consequently, of ecclesial communion. For our part, we are convinced of the value of such an approach, in which this book is only one step. It is not enough that the canonical procedures for the resolution of conflicts internal to the Church are operational; they must also be known by the individuals concerned, something that Pope Francis asked for: I encourage all of you to persevere in the pursuit of a clear and upright exercise of justice in the Church, in response to the legitimate desires that the faithful address to their Pastors, especially when they trustingly request that their own status be authoritatively clarified1115. In the absence of precise information for the faithful, Cardinal Mamberti called for bishops to regularly inform the Supreme Tribunal: Communion is lived in communication, and communication is at the service of communion1116. 1113 KASPER (Card William), « La théologie de l’Église », Paris, Cerf, coll « Cogitatio Fidei » 158, 1990, p. 407/464. 1114 Hidulphe BILALI BANAZEBI: Défense des droits subjectifs des fidèles. Equité et légalité au canon 221 CIC 83, Paris, Harmattan 2015, p. 258/340. 1115 FRANCIS (Pope) : Speech to the participants in the Plenary Assembly of the Supreme Tribunal of the Apostolic Signatura, Vatican, 8 November 2013. 1116 MAMBERTI (Cardinal Dominique), Letter on the activity of tribunals, 30 July 2016. NB: the initial questionnaire of 1971 (AAS 63 [1971] 480-486) was revised in 2016. 342 Cardinal Turkson, who did not hesitate to combat and recognize some of the corruption in the Church, called for a better promotion of justice by those in authority: We hope that more and more honest and competent politicians unite in various educational and social structures in favor of justice, truth and beauty1117. Indeed, the promotion of administrative justice of the Church will produce several benefits: • Bishops and superiors general, as well as their chancellors, will perhaps take greater precautions when they prepare or issue singular administrative acts, knowing that these acts may be the object of recourse; • The Roman Curia and the Supreme Tribunal of the Apostolic Signatura will find it advantageous to know that the faithful understand their action; • Canonists and other jurists, whether current or in training, may be able to learn about this interesting subject, administrative canon law; • The Catholic faithful will be better able to know their rights and the means to assert them, as well as their obligations, and they will be able to speak about them in private conversations, or in written testimonies in parish bulletins, in the newspapers of their associations or in comments on social networks; • The responsible organs of the press will be able to discuss the implementation of the rights and obligations of the Catholic faithful, especially during the course of the year 2017, which marks the golden jubilee of the creation of the Administrative Tribunal of the Church. In regard to this, let us cite the recent remarks of Pope Francis to Italian journalists: “There is no conflict that cannot be resolved by men and women of goodwill [… who know how…] to resist the temptation to foment the confrontation with language that fuels the fire of division, instead promoting the culture of encounter.” These words challenge me, the author, and others who relay them, knowing that journalism is "an instrument of construction, a factor of common good, an accelerator of process of reconciliation 1118.” In conclusion, let us return to Sacred Scripture, examining in more detail the meaning of the jubilee, since in 2017 we celebrate the anniversary of the second section of the Supreme Tribunal of the Apostolic Signatura: This fiftieth year you shall make sacred by proclaiming liberty in the land for all its inhabitants. It shall be a jubilee for you, when every 1117 TURKSON (Card Peter Kodwo Appiah) Corrosione, Combattere la corruzione nella Chiesa e nella società, Milano Rizzoli, June 2016. 1118 FRANCIS (Pope), Speech of 22 September 2016 at the Italian Council of the Order of Journalists, translated from French. 343 one of you shall return to his own property, every one to his own family estate. In this fiftieth year, your year of jubilee, you shall not sow, nor shall you reap the aftergrowth or pick the grapes from the untrimmed vines. Since this is the jubilee, which shall be sacred for you, you may not eat of its produce, except as taken directly from the field. "In this year of jubilee, then, every one of you shall return to his own property. (Leviticus 25, 10-13). Let us not stay in the Old Testament, but also address ourselves to the Father as Jesus taught us: Forgive us our trespasses as we forgive those who trespass against us: Yes, Lord, let the spirit of forgiveness prevail in the Church, both in the hierarchy when confronted by the faithful, and among the faithful when dealing with the hierarchy; Lead us not into temptation: Yes, Lord, do not lead the faithful into the temptation to distance themselves from the Church, by turning to civil justice or to the general public when their request for mediation dialogue, or for justice in relation to the exercise of ecclesiastical administrative power is not heard. Do not lead those in the ecclesiastical hierarchy into the temptation to abuse authority, if they feel that certain administrative acts will not be the object of judgment. But deliver us from evil: Yes, Lord, deliver us from injustice in all its forms, and in particular from injustice within the Catholic Church, thanks to the valuable work of the second section of the Supreme Tribunal of the Apostolic Signatura, and to the inspiration of the Holy Spirit, so that in the future, the administrative justice of the Church can contribute even more to ecclesial communion 344 Chapter 12: Final Conclusions 1. Conclusion One day, a lady stopped Cardinal Bertone in St. Peter’s Square and said to him: I have learned that you will go to Cagliari, to hold a conference on justice in the Church. Well, let me tell you, there is no justice in the Church1119. The developments of this book offer us a vision that is more positive than that, even if it is important to listen to statements similar to that of this lady, made by others as well: The Church must listen, rise up, look on the pain and the expectations of people according to mercy, and it must do so without fear of purifying itself, looking assiduously for ways to improve1120. Administrative justice in the Church is at work, as we have seen, and so we can rejoice. It is without a doubt still in progress, on procedural aspects mentioned in the previous chapter, but also on the following major themes: • In the face of more serious errors, where the necessary protection of victims could sometimes make us forget the right of defense of the accused; • In the face of private revelations and new religious movements, where the passion that generates the charisms sometimes entails judgments for or against them, even before a serious investigation is conducted; • In internal conflicts within particular Churches and religious congregations, where the procedures of dialogue and of mediation are sometimes ineffective, and so justice is sought only at the moment of exclaustration, transfer or expulsion; • In the recognition of associations of the faithful where the criteria of ecclesiality are applied with greater transparency; • In informing the Catholic faithful of the existence and functions of administrative justice, largely unrecognized. This is the credibility of the Church, as Benedict XVI observed: 1119 BERTONE (Card. Tarcisio), "La Chiesa e l’impegno per la gustizia," Studii Giuridici XLV, Libreria Editrice Vaticana, Città del Vaticano 1997, p. 8 1120 TURKSON (Cardinal Peter Kodwo Appiah), Corrosione, Combattere la corruzione nella chiesa e nella societa, preface par le Pope Francis, Rome 2017, Rizzoli 345 Ignorance of the Church’s teachings and its legislation on given subjects is harmful to the proper running of the life of the Church itself.1121 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 justice1122. We had hoped that the year of the fiftieth anniversary of the second section would have permimtted making a prudent and measured step toward informing the faithful about their rights and obligations, as well as the means to defend them. Unfortunately, most of the canonical symposia held in 2017 focused on the centenary of the abrogated Code of 1917, 1123 without any mention of the fiftieth anniversary of the creation of the Administrative Tribunal of the Church, currently in operation. This silence does not date from today and, already in the past, the simple fact of informing the faithful of canon law was sometimes seen as a fault. In 1850, Fr. Marie-Dominique Bouyx (S.J.), a well known canonist, published an article about the popularization of Canon Law in the daily paper L’Univers. His Bishop, Msgr. Sibour, furious, gave him twenty-four hours to leave his post of Director of the Marie-Thérèse retirement home, to which he had been appointed the previous year. […] The French Bishops are certainly not supporters of higher education in canon law, a law which risks prejudicing their authority, and which they intend to implement according to their personal views1124. After the promulgation of the French law establishing freedom of higher education, on July 2, 1875, it was necessary to wait nearly five years and for several interventions of the Holy Father, so that at the beginning of the school year in 1880, the Faculty of Theology of the Catholic Institute of Paris at the time, created a faculty of canon law, with the young Abbot Gasparri as professor. Despite a French context which remains generally unfavorable, even hostile to this "diaconia of justice" that the Holy Father and the Council of Cardinals 1121MBOMA (Georges usus) Le droit canon face aux réalités africaines, L’Harmattan, 2013, p. 13/96 Preface by MATANGILA (Léon Musadila). 1122 BENEDICT XVI (Pope), Speech to the participants of the Plenary Assembly of the Supreme Tribunal of the Apostolic Signatura, the Vatican, 4 February 2011. 1123Discussions at Santa Croce on March 13 in Rome, during the Consociatio of 4-7 October, and of ICP/SIDC 7-8 November in Paris. 1124IMBERT (Jean), La faculté de droit canonique (1895-1975), in L’année canonique, tome 38, 1995-1996, p. 286. 346 have examined during the course of their 18th meeting1125, the present book could be published and many radio broadcasts relayed1126. I would like to express my gratitude to the people who have taught me righteousness by their witness of life, those who have taught me canon law, welcomed me into the world of canonists and helped me in the preparation or dissemination of this book. In addition to my wife Sylvie, most of them are cited in the text, while others wished to remain anonymous. God bless you. I also want to express my apologies for the shortcomings, imperfections and perhaps mistakes in this book, and I ask those who find them kindly to bring them to my attention1127, so that I can take them into account in the next edition. Despite its imperfections, I hope that this book will be a useful instrument for the protection of the rights of the faithful and the common good of the Church, as Cardinal Pasinya indicated: It is, therefore, an evangelizing mission to put the instruments necessary for the protection of the rights of the faithful at the disposal of the particular Churches1128. To this effect, I dedicate this book to Canonists without Borders, which it is now appropriate to present. 2. Canonists without Borders Before the Second Vatican Council, the Encyclical Fidei Donum1129, on the renewal of the missions, was very important for the development of evangelization in Africa and in developing countries, where the Church is currently flourishing. It encouraged European priests to go to serve for a while in a mission diocese. Today this encyclical remains topical for priests, but also for the laity who are committed to a period as volunteers in Catholic missionary associations like the Foreign Missions of Paris. Therefore, why not apply it also to the canonists of developed countries, which include also a growing share of the laity? 1125OVEJERO (Paloma García), vice-director of the Press Office of the Holy See, Zenit, 15 February 2017. 112623 and 25 February 2017 at Radio espérance and radio RCM in Dakar, 1 April at Radio Maria at Lomé (Togo), 4 April 2017 at Radio immacolata at Allada (Bénin), 6 October 2017 at Radio Vatican (Rome), 9 November 2017 at Radio courtoisie (Paris), 20 and 21 January 2018 at Radio ATM (90.5. Abidjan Port Bouet), and Radio Espoir (Ivory Coast). 1127 Write to yves.alain@canonistes.org 1128 PASINYA (Card. Monsengwo), archibishop of Kinshasa, in the preface of KITAMBALA, (Hilaire Iwaka), L’office de chancelier dans le Code de droit canonique de 1983, l’Harmattan, Paris 2017, p. 10 / 245. 1129 PIE XII, fidei donum, Rome, 21 April 1957. 347 Canonists without Borders is an international network of canonists, without any particular mandate of the hierarchy of the Church, but with the desire to promote canon law and ecclesiastical justice mainly in developing countries, and for the Catholic faithful. Since its creation in 2015 Canonists without Borders initiated five types of services for free: 1. Providing assistance to Ecclesial Institutions, specially in Africa; 2. Providing useful information to canonists and Catholic faithful; 3. Orienting the faithful and helping them to answer their questions; 4. Contributing to solving ecclesial controversies; 5. Creating a canonic on line library1130 For the future, we will try to structure the Canonists without Borders’ network. 2.1. Providing Assistance to Ecclesial Institutions As Canonists without Borders begins to be known, some institutions are calling it for different kinds of support. Currently many Catholic entities are opening in developing countries and their work is increasing. The Burkina-Niger Episcopal Conference has chosen pastorally to encourage the faithful to regularize their marital status, in particular to allow their children to receive baptism. The result is an unprecedented increase in the number of applications for the recognition of the nullity of marriage, which went from 10 per year on average from 2010 to 2015, to 200 applications for 2016 alone, in the Interdiocesan Tribunal of Ouagadougou. As a result of Mitis Iudex, each diocese has been invited to establish a diocesan tribunal or to choose a nearby tribunal. Often, these courts face difficulties in their start-up, while others have difficulty in the use of information technology. To the extent that it can, Canonists without Borders strives to provide the aid mentioned below. 2.1.1. Handling Delayed Cases In view of the implementation of the Apostolic Letter Mitis Iudex, offices are opening in various dioceses of Africa and the world. However, starting or restarting a formal office requires a lot of work that canonists sometimes have difficulty with. As an example, a newly appointed Judicial Vicar found in the archives of the Tribunal a hundred pending cases, with incomplete procedures to resume. The beginnings of assistance have already been made, with the 1130 www.canonistes.org/biblio 348 drafting of a legal note preparing submissions by counsel and the defender of the bond in a local case. In the office of Thiès (Senegal), cases remained pending because the witnesses had moved to another country. Canonists without Borders found contact info for the offices in the countries concerned, and informed the office in view of rogatory letters. This activity to support such offices should only continue to develop. As soon as Canonists without Borders will have enough members, it will also be able to conduct "Operation Lend a Hand," to bring for a short period a group of European canonists onsite, to help start new offices. Here are two testimonies: • Father F., official in Africa: “The members of the office charge me to say thank you, and we await another visit when the opportunity will present itself to you again. We will continue to maintain contact through the wedding records you went over with us in your capacity as a canonist.” (November 18, 2016) “Thank you again for the call to others, in order to intervene in one way or another to help us to make progress. Best wishes to you and God bless you.” (30 November 2016) • Sister M., judge in an African office: “Since I was elected Superior General, I have less time to deal with cases and I have, for example, stopped dealing with one of them, rendered complex by the fact that two of the witnesses had left the country. In February 2017, Canonists without Borders put me in contact with the offices in those countries where the witnesses now live, so that the can testify thanks to a rogatory commission. In Burkina Faso, Mgr. Laurent Dabiré, Bishop of Dori and moderator of the ecclesiastical courts, has high regard for the initiative of Canonists without Borders. At a July 2017 meeting, a decision was made to experiment with having a defender of the bond or a lawyer at a distance. If the arrangement proves successful, a formal request will no doubt be addressed to francophone faculties of canon law for canon-law students who can work with Canonists without Borders on real cases—whose names will be concealed, to prevent potential indiscretions—and not only on theoretical cases of nullity of marriage. 2.1.2. Other kinds of support such as mediation or training In 2015, the Chancellor of Conakry asked Canonists without Borders to put online the website of the Archbishop, permitting the office to inform the faithful of the diocese. This has been done successfully. In 2016, Institutions like those in Paris publish announcements in Catholic journals, to search for contact information for the parties or witnesses summoned in matrimonial proceedings. After searching on Facebook, Linkedin 349 and social networks, Canonists without Borders has found traces of several persons sought and has informed the offices concerned. In 2016, Canonists without Borders shared its experience on the training of canonists during a conference-debate held in an African diocesan office. The presentation can be found on the professional part of the site www.canonistes.org in connection with online formation proposals that are free or paid for to faculties of Canon Law. In 2017, Canonists without Borders has been called for a mediation between two parishioners of a Parisian parish, which is now on progress. 2.2.Providing useful information for canonists and faithful Society becomes more and more complex, and canonists, just as other professions, have a growing need for information. Organizations such as the Pontifical Gregorian University are working to identify and make available to the public the main canonical resources existing in the world1131. In its own way, Canonists without Borders also makes a contribution. 2.2.1. On-line collection of theses and books about canon law1132 Society becomes more and more complex, and canonists, just as other professions, have a growing need for information. In this field, there is a great inequality between the privileged canonists installed in Rome or in a large city university, who have easy access to a canonical library, and those who are incardinated in distant dioceses and do not have this access. Here is an example of a request received: Father F, Chancellor and official in Africa: “I am happy to learn that you have just published a book on administrative law. I hope that you will send me a copy of this valuable work. If you don't, I will have no chance to read it. I am particularly interested in this book because since October 2016, I have been teaching administrative law in a large seminary. As most of them have internet-access, Canonists without Borders has begun to create and put online a digital canonical library, in which it has already 1131 1132 https://www.iuscangreg.it www.canonistes.org/biblio 350 identified and indexed nearly 2 500 thesisand articles on line1133 about canon law, indexing them by canon and by key word, to facilitate their identification. Moreover, Canonists without Borders initiated a campaign to collect and publish thesis, briefs and canonical works in connection with the Harmattan publishing house and the distributor Youscribe. Authors are encouraged by various benefits to send a digital version of their memoir or thesis, that Canonists without Borders puts online so that the canonists and more generally the public can have access too it free of charge, for Canonists without Borders, or at low prices for Youscribe. By entering in the search bar the number of a canon or a keyword such as "history" or "philosophy," the reader immediately sees the theses of canon law relevant to this subject and, if there is a digital version, it can access the contents of a simple click. Thank you to the readers who wish to participate in this campaign, by sending their thesis, encouraging their canonist-friends to do so, or helping with the idexation of thousands of theses already identified. 2.2.2. Compendium of Jurisprudence Everywhere in the world, canonists seek Rotal jurisprudence, helping them to write the in iure sections of their decisions. Abbot Jacques Gressier gave Canonists without Borders the French translations of rotal jurisprudence that he had collected and published in the canonical compendium of Arras. Some of this jurisprudence has been put online on the professional part of the site www.canonistes.org. In Versailles, canonists use the compendium of case law of Msgr. Boyer to prepare their legal submissions in marriage-nullity cases. We hope that one day such work might be the subject of a book released in Africa, and that it be completed by an equivalent book for defenders of the bond, integrating the work and publications subsequent to Mitis Iudex. Moreover, many canonists deplore the fact that the contentious-administrative jurisprudence of the Supreme Court is less accessible than the matrimonial jurisprudence of the Roman Rota. To help in remedying this deficiency, Canonists without Borders has put online a database of contentious-administrative 1133 Unhappily, we collected only more generally title of thesis from varoous universities and not integral content. We thanks the Gregorian University and CSLA for their providing valuable information on-line. 351 case law on a thousand cases that can be accessed on the professional part of its website1134. 2.2.3. Good Digital Practices Episcopal conferences such as that of Taiwan sometimes contact the Pontifical Council for Legislative Texts in order to determine the extent to which they are canonically permitted to use digital technologies, such as publishing baptismal registers in a digital version on the cloud. In addition to expertise in this field brought to various Dicasteries of the Roman Curia, Canonists without Borders has experimented with technologies such as Skype, Viber and WhatSapp, in order to assist petitioners at a distance, and electronic signatures for the secure exchange of documents. In addition to experimentation, Canonists without Borders has begun to establish and share a bibliography of experiences in the use of digital means for canon law1135. 2.3. Orienting the Catholic Faithful Many dioceses provide precise information on the rights and obligations of the faithful within the Church, and on the means to enforce them in making use of the ecclesial structures provided for this purpose. Other dioceses are silent as to the mailing-address of the office which handles marriage-nullity trials, and so the faithful do not always know whom to contact when they encounter legal difficulties in their lives as Christians. Without in any way replacing the competent bodies of the Church, Canonists without Borders provides basic canonical information on its website www.canonistes.org, and responds to individual questions from the Catholic faithful, aiming to orient them toward good structures within the Church. 2.3.1. Discerning the Possible Invalidity of a Marriage More and more frequently, couples in difficulty seek to discern the possible invalidity of their marriage before making a decision to separate. Canonists without Borders encourages them to identify and to meet in their diocese with persons from "the structure of information, advice and mediation" laid down by the Subsidium for the application of the Apostolic Letter Mitis Iudex, "for the investigation preliminary to the matrimonial trial." Once their civil divorce has been obtained, the laity look for information about how to engage in a canonical trial to recognize the nullity of their marriage. 1134 1135 http://www.canonistes.org/canonistespro-inscription/ La loi des hommes et la loi de Dieu : free online canon-law course proposed by the Institut catholique de Paris starting in January 2017. https://www.fun-mooc.fr/courses/ICP/84002/session01/about 352 Canonists without Borders informs them of the procedures in force, and the competent offices which handle their situation. 2.3.2. Recalling the law currently in force Approximately once a month, Canonists without Borders receives requests from Catholic faithful wishing to know what church law recommends. Canonists without Borders strives to research the law in force, and to respond to them free of charge. In ecumenical matters, inquirers have been informed of the main canons and of the Directory for the Application of Principles and Norms on Ecumenism1136. The warm thanks received from inquirers allow us to think that we should persevere on this track. 2.3.3. Helping to resolve conflicts Besides its interventions at the request of a parish priest or official, Canonists without Borders regularly receives requests from priests, religious or laity to resolve administrative conflicts with ecclesiastical authority. It is involved in these types of cases: • Faithful faced with defamation and slander by administrative authority; • Situations of tension and even harassment in a religious community or in a diocese, leading a priest to request excardination, or a religious to request exclaustration; • Faithful employed in the Church, from whom a new administrator withdraws their employment without clear reason; • Priests, religious or laity who left their assignment, who are left without means to start over in life; • Laity confronted with a plan for the sale of their church by the mayor of their village; • Faithful in difficulties with the civil authorities of their country, for example the intransigent secularism in France or Shariah in Islamic countries. Canonists without Borders provides information on their rights and obligations and, when the situation warrants, helps them to follow the procedures for ex gratia, hierarchical or contentious-administrative recourse, allowing them to obtain excardination andincardination consistent with their skills and the needs of the Church.Here are a few examples of testimony received: • In Senegal, a bishop expelled a priest from his diocese based on testimony from his parishioners. Thirty years later, other parishioners gathered evidence and intervened with the bishop who had expelled the parish priest, and he recognized that the charges received had been slanderous; 1136www.vatican.va/roman_curia/pontifical_councils/chrstuni/general-docs/rc_pc_chrs- tuni_doc_19930325_directory_fr.html 353 • • Father F: “Bravo for your work! Imagine that I am for months under the blow of a slanderous denunciation, which would have meant nothing if it had not been made by [a Catholic university]. Do you know a canonist (preferably a priest, who would have more weight) who could help me to clarify matters? […] In the end, I accept all this and other tests as a salutary Cross […] fraternally, Abbot M.” (17 January 2017) Father E: “May the Lord continue to bless your work for the good of the Church. All our congratulations for your work and the expansion of your site! You do good to our Church. Continue this year and the following. We remember with gratitude your listening and your answers concerning our rather unique situation. Since our meeting, I sent my recourse to Rome concerning my departure from religious life. I was expelled.” (3 February 2017) A growing number of religious seek assistance in restoring constructive dialogue with their superiors. Canonists without Borders gives them moral support, clarifies their rights and obligations, and guides them to the appropriate bodies such as the French Welcome Mediation Service for Religious Life and Community (SAM) or the International Council of Canonists. In case of failure, it helps them to initiate the procedures of ex gratia, hierarchical or contentious-administrative recourse, to restore justice. Here are three examples of testimony received: • Sister JM, African religious: Thank you very much Uncle Yves, God bless you […] you are really an angel and I thank you with all my heart. (31 January 2017) • Brother JM, Trappist religious: Thank you very much for the closeness and interest that you showed me. This comforts me. Once again thank you for your welcome and for carefully listening. United in prayer. (7 February 2017) • Brother MJ I have surfed your book which has helped me in my difficult situation. I have recommended it to others and some have already obtained a copy. Regularly, faithful find themselves in difficulty after being removed from an office in the Church, a diocese, a school or a religious congregation. On several occasions, members of Canonists without Borders have helped them to start afresh in life, as it is required to do by canon 222 § 2: They [the faithful] are also bound by the obligation to promote social justice and again, remembering the commandment of the Lord, to aid the poor with their personal income. The other religions, and in particular evangelicals and Muslims, very numerous in Africa, are faced with problems that are internal to their communities 354 comparable to those that we encounter in the Catholic Church. When the opportunity presents itself, Canonists without Borders endeavors to develop dialogue between jurists of religions, so that they may help each other, in mutual respect, with a view to a better efficiency of their respective justice. Here is an example: In August 2017, an African bishop of a non-Catholic Christian church expressed his difficulties with some clergy of his diocese, because they would not follow episcopal instructions, or because they impose unjustified financial contributions on their parishioners. He asked for clarification of the proper Catholic canonical procedures on these matters, to better manage his relations with his clergy. Conversely, we have seen that the mediation practices in force in certain Reformed Churches could prove helpful to Catholic bishops, in the face of controversy between different persons in their dioceses. 2.4. Structuring Itself Legally As of 2017, Canonists without Borders is a private association of the faithful, without recognition or particular mandate of the Church. It is sometimes perceived as a danger by the hierarchy of the Church, which may fear that Canonists without Borders and its members may take positions or act in ways that are likely to hamper them. This is not surprising, because it is in fact normal that an institution, of what type may be (secular or religious, public or private…) seeks to protect itself against actors working on the periphery, over whom it does not have control. By letting them act, the Church takes the same risk that its Master, God the Father, Who created man with the free will to love, God the Son Who has redeemed man after his sin, and God the Holy Spirit Who inspires man to choose love, not sin. In this spirit of love of the Church, Canonists without Borders submits to the ecclesiastical hierarchy in regularly submitting its activity reports, and taking account of the comments received. For the future, Canonists without Borders wants to develop its activity, with the assistance of volunteer canonists, and acquire a permanent legal structure1137, under the watchful eye of the Supreme 1137 The current idea is to create a two-part structure, with an Executive Board composed of canonists acting voluntarily within the framework of Canonists without Borders, and a Supervisory Board composed of church leaders with the right to view the activity of the Executive Board, but without operational responsibility. 355 Tribunal. As long as this condition is not met, Canonists without Borders and its members do not accept any gifts or payments, but continue their work of popularizing the law and canonical justice, in communion as closely as possible with the Church. We are encouraged to persevere, by faithful who thank us for the aid received, by an African Catholic bishop, President of the Commission for Justice of his Episcopal Conference, who gave his imprimatur, or by a Cardinal Prefect of a Congregation, who wrote: …I have received your very interesting book, Administrative Justice of the Catholic Church, that you had the kindness to send me, and I thank you. I take this opportunity to thank you for your initiative concerning Canonists without Borders, which saw the light Another encouraging sign lies in the fact that canonists enroll without interruption in the professional part of the site www.canonistes.org, and/or ask to receive its quarterly newsletter. We hope that some of them will choose to devote their time (we do not accept money) and help us to reach more quickly our four objectives: • Promote canon law and justice in the Church; • Create a digital library of canon law; • Assist ecclesial structures of canon law; • Assist the hierarchy and the faithful to enforce their rights and obligations 3. A last message How does one say with simple words that the faithful must retain administrative justice of the Church? First of all that the Church is holy but composed of sinners, and that conflicts are inevitable, including with the ecclesiastical hierarchy. When such conflicts occur, it is important not to be offended, but to forgive in accord with the example of Christ, Who suffered injustice and instructs us to forgive not seven times, but until seventy-seven times seven. Always in accord with the example of Christ, Who spoke harshly to the Pharisees and drove out the money-changes in the temple, Christians must arm themselves with courage in the face of injustices inside the Church, so that they do not become an occasion of scandal for the weak. In such cases, we recommend that the faithful appeal to the law and justice of the Church, following the following six steps: 1. Pray, asking for the peace for oneself and for one’s opponent, and to discern the situation in the light of the Gospel; 356 2. Talk to the author of the alleged injustice, to try to understand his point of view and explain to him one’s own; 3. In the event of persistent disagreement, to appeal to a wise person to better discern the situation and, if necessary to intervene as a mediator1138, while taking the precaution of writing within ten days so as not to lose the right of appeal; 4. If the injustice persists, make one or several hierarchical recourses, within the prescribed time limits, until obtaining a decision by the Roman Curia; 5. If the injustice persists in violation of a law of the Church, to appeal to a canon lawyer and make administrative recourse. 6. Whatever the decision, let us remember that a sentence in favor of a party will not be synonymous with victory, but a means to preserve communion, in favor of the reestablishment of the Truth1139. 1138 In 2017, parish priests asked Canonists without Borders to conduct a mediation between parishionners. 1139 BILALI BANAZEBI (Hidulphe) : Défense des droits subjectifs des fidèles. Equité et légalité au canon 221 CIC 83, Paris, Harmattan 2015, p. 258/340. 357 358 Main Sources et bibliography1140 Holy Scripture1141 : • • • • • • • • Deuteronomy 5, 6 ; 16, 20. Leviticus 25, 10-13 MATTHEW, 5, 20 ; 7, 3-5 ; 7, 21.26 ; 16, 18 ; 18, 15-17 ; 19, 6 ; MARC, 9, 38-39 ; LUC, 1, 6 ; 6, 23 ; 12, 13-14 ; Actes 6, 1-3 ; PAUL 1. Tim. 5, 16 ; JACQUES 1, 27. Popes : BENEDICTUS XV : • 27 May 1917 : Providentissima Mater PAUL VI (Blessed) • 21 November 1964 : Lumen Gentium • 18 November 1965 : Apostolicam actuositatem, • 20 November 1965 : Allocution for the solenn session inaugurating the revision of the Code. • 7 December 1965 : Dignitatis humanae, • 15 August 1967 : Regimini Ecclesiae universae AAS, 59, 1967, 885-928. • 29 June 1971, Evangelica testificato JOHN-PAUL II (Saint) • 25 January 1983 : Sacrae disciplinae leges • 25 June 1988, Pastor bonus • 30 December 1988 : Christifideles laici • 18 October 1990 : Sacri canones • 17 January 1998, Message for the Roman Rota. • 30 avril 2001 Sacramentorum Sanctitatis Tutela • 1er January 2002: Message for the World day of the peace 2002: AAS 94 (2002), 132-140. • 17 June 2016: Message for the Pontifical Council for the Laity. BENOÎT XVI 1140 En l’absence de références plus précises, les textes officiels ont été tirés du site internet du saint Siège www.vatican.va 1141 New American Bible, www.vatican.va/archive/ENG0839/_INDEX.HTM 359 • • • • 21 June 2008: Antica Ordinatione, AAS 100 (2008) 513-538. 29 June 2009: Caritas Veritate 21 May 2010: Delicta graviora. 4 February 2011: Message for the plenary session of the Supreme Tribunal suprême of Apostolic Signatura, AAS 103 (2011), p. 118. FRANCIS • 8 September 2015: Mitis Iudex Dominus Iesus • 4 June 2016: As a Loving Mother • 20 November 2016: Message at TV 2000 for the end of the Mercy year • 29 January 2017: Méditation during the Angélus Holy Curia • Sacred Congregation of the Holy Office, « Intorno al caso di Teresa Neumann. Relazione di una visita a Konnersreuth », Mach 1938 (ACDF, SO, Dev. V. 1927 7, 125), • Pontifical Council for the Interpretation of Legislative Texts. "About ca-no 299 §3" DC 86 [1989] 214. • RODÉ (Card Franc), Congregation for Institutes of Consecrated Life and Societies of Apostolic Life: Instruction of May 11, 2008, Faciem tuam, Domine, re-quiram (the service of authority and obedience)) • Congregation for the Doctrine of the Faith, Doctrinal Assesment of the Leadership Conference of Women Religious, 18/04/2012 Code of Canon Law1142 Commentators (Books) • • • • • • • 1142 ABBAL (Elisabeth), Paroisse et territorialité dans le contexte français, Paris, Cerf, 2016, 520 p. AMATO (Mgr Angelo), « La Congrégation pour la doctrine de la foi a toujours été un tribunal » in Zenit, 1er avril 2004, traduit par Anne Kurian ARROBA CONDÉ (Manuel J.) Diritto processuale canonico, Institutum Iuridicum Claretianum, Roma, Ediucrcla 538 p AUMENTA (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia. AZNAR (Gil, F. R.) y SANCHEZ (Roman, R). 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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 BRUGUES (Mgr Jean-Louis op.) Archiviste et bibliothécaire de la Sainte Église romaine, depuis 2012 Église et mémoire - Conférence donnée à Albi le 14 novembre 2015, http://catholique-tarn.cef.fr/Église-et-memoire-Conference BRANQUIQUINHO (José Oliveira), « Jurisprudencia dos Tribunais Superiores (2010-2014) » in Forum Canonicum X/2 (2015), 113-131. BRUNET DE BROU, La religieuse malgré elle. Amsterdam 1720, Préface, p. 7. 362 • C • • • • • • • • • D • • • • • • BURDEAU (François), Histoire du droit administratif : de la Révolution au début des années 1970, Paris, PUF, 1998, 512 p. CANOSA (Javier), « Giustizia amministrativa eclésiastica e giurisprudenza », in Ius ecclesiae XXIII, 2011, p. 563-582 CARBALLO (Mgr. 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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. Cité par P.A. Bonnet, Recognitio statutorum consociationum privatum, in Periodica 90 (2001) 3-43, p. 41 note 184. FOYER (Jean), Histoire de la justice, PUF, 1996 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, n° 417, p. 383, traduit de l’italien par l’auteur. 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. ; sur l’organisation judiciaire, voir notamment p. 229 et sq. 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SERANT (Paul), Les déchirements des catholiques français, Paris 1989, Librairie Perrin, p. 94-116/283 SPINELLI (Lorenzo), « L’atto amministrativo nell’ordinamento della chiesa » in Studia et documenta iuris canonici, n° XI, Roma, Officium Libri catholici, 1984, p. 101-122. STAFFA (Dino), « Dissertationes de administratione iustitiae in Ecclesia” in Periodica, 61 (1972), p. 20-24. TORFS (Rik), « L’affaire Gaillot et la liberté d’expression » in RDC 45, 1995, p. 83-94. TORFS (Rik), “Rights and legitimate expectations of clercs”, Cours donné à la Faculteir kerkelijk recht de Leuven et en master de droit canonique à l’Institut de droit canonique de l’Université de Strasbourg en 2014. TOXE (Philippe), Quel principe de légalité en droit canonique ? in L’année canonique, tome LVI (2014-2015), p. 230 VALDRINI (Mgr. Patrick), La justice de l’Église, conférence donnée le 2 octobre 2016 à l’Académie française des sciences morales et politiques, www.asmp.fr/travaux/communications/2006/valdrini.htm VENARD (Marc), « La fin d’une époque » in Histoire du Christianisme : l’Âge de raison (1620-1750), volume 9, sous la direction de J-M ; Mayeur et al., DESCLEE, 1997, p. 1149/1214. VENEU (Bruno), « Y a-t-il une hérésie inquisitoriale ? », in « L’Inquisizione, Atti del simposio internazionale. », Rome, Biblioteca apostolica vaticana, 2003, coll Studi e testi, n° 417, p. 491/788. VOLTAIRE, « Traité sur la tolérance » Paris, 1763. WERCKMEISTER (Jean), « les sectes », in Revue de droit canonique, 51/1, 2001. WITT (Leopold), Das Leid einer Glückseligen, Waldsassen 1927. 368 Table of Illustrations • • • • • • • • • • p. 6: Abbot Jacques Gressier p. 7: Thomas More’s Utopia p. 8: Statue of Saint Yves p. 17: Mary, Mirror of Justice, Church of St. John Bosco, Paris XX p. 44: Diocesan tribunal of Ouagadougou (Burkina Faso) p. 82: Emission at Radio Immaculée Togo p. 94: Abbot Jean Werckmeister p. 184: Number of Apparitions listed by Miracle hunter p. 197: Mother Eugenia, Madeleine Aumont, Teresa Castillo de Lipa p. 213: Lacuzon, logo of the Website « sos-dérive sectaire » • • • • p. 214: Mother Eugenia p. 232: Training Session at the ecclesial court of Cotonou p. 236: 120ème birhthday of the Memni Parish in Côte d’Ivoire p. 287: The dove of peace in the streets of Lome • • • • • p. 288: Mooc proposed by the Paris Catholic University p. 314: Church of St. Georges des Gardes p. 329 : The e-justice European portal p. 330 : Website SAGACE from the Administrative French Courts p. 376 : Le Tribunal ecclésiastique dans la tour Miséricorde de Cotonou Table of Contents Preface ........................................................................................................... 6 Introduction................................................................................................. 11 First Part: Lighting..................................................................................... 17 Chapter 1: Historical Perspective ............................................................. 20 1. Overview of the Legacy of Historical Evolution .................................... 20 2. Some Notable Examples ......................................................................... 24 2.1. Justice from the Early Ages ....................................................................... 24 2.2. The Inquisition ........................................................................................... 26 2.3. Jurist-Saints ............................................................................................... 30 2.5. Trials for Witchcraft ................................................................................... 35 369 2.6. Justice for the "Natives" ............................................................................ 37 2.7. Justice during the French Religious ........................................................... 38 2.9. Ecclesiastical Justice after 1917 ................................................................ 41 Chapter 2 Principles, Organization and Procedures .............................. 47 1. The Principles of Ecclesiastical Justice ................................................... 47 1.1. Justice: Give to the Other What is His ................................................ 49 1.2. Mercy and Charity .............................................................................. 50 1.3. The common good, fairness and communion ..................................... 52 2. The law and the justice administration .................................................. 56 2.1. The boundaries of administrative law ........................................................ 57 2.1.1. Boundaries with secular law ........................................................... 57 2.1.2. Boundaries with private law ........................................................... 60 2.1.2. Boundaries with sacramental law .................................................. 61 2.1.3. Boundaries with criminal law ......................................................... 61 2.1.4. Internal boundaries in canon law................................................... 63 2.2. Administrative Law ................................................................................... 63 2.2.1. The concept of administrative act .................................................. 64 2.2.2. The legality of administrative acts ................................................. 66 2.2.3. Acts subject to recourse .................................................................. 68 3. Recourse Procedures ............................................................................. 71 3.1. The Organization of Justice ....................................................................... 73 3.2. Administrative and Hierarchical Recourse ................................................ 76 3.2.1. Administrative Recourse (Remonstratio) ...................................... 76 3.2.2. The First Hierarchical Recourse .................................................... 78 3.2.3. Hierarchical Recourse to Rome ...................................................... 79 3.3. Contentious Administrative Remedies ....................................................... 80 3.3.1. Eligibility of Recourse ..................................................................... 80 3.3.2. The Admissibility of the Recourse.................................................. 82 3.3.3. Examination of the Merits of the Recourse ................................... 83 3.3.4. The Consequences of Recourse....................................................... 84 Chapter 3: The Sources of Jurisprudence ............................................... 85 1. Administrative Case Law ...................................................................... 85 370 1.1. Publications ............................................................................................... 87 1.2. Contentious Cases...................................................................................... 88 1.3. Sentences ................................................................................................... 91 1.4. Statistics ..................................................................................................... 92 2. The Database ......................................................................................... 92 2.1. The Identification and Acces to the Database ............................................ 92 2.2. Searching for Cases ................................................................................... 93 2.3. Characteristics of a Case ............................................................................ 94 2.4. The Display of a Sentence ......................................................................... 94 2.5. Dialogue with Administrators .................................................................... 95 Second Part: Case Law .............................................................................. 97 Chapter 4: Justice for the Laity............................................................... 101 1. Reshaping Parishes ............................................................................... 103 2. The Reduction of Churches to Profane Use .......................................... 106 2.1. Applicable Law ........................................................................................ 107 2.2. Difficulties and Recourses ....................................................................... 109 3. Particular Decrees for the Laity ............................................................ 113 3.1. Admission to the Sacraments ............................................................ 113 3.2. The laity employed by the Church .................................................... 115 4. Associations of the Faithful ................................................................. 116 5. Other Substantive Reasons for Recourse ............................................ 125 Chapter 5: Justice for the Clergy ............................................................ 131 1. Removal and Transfer of Parish Priests .............................................. 136 1.1. Removal of Parish Priests ........................................................................ 137 1.2. Transfers .................................................................................................. 140 2. Administrative Sanctions..................................................................... 141 2.1. Incardination and excardination............................................................... 142 2.2. Refusal or Revocation of Faculties .......................................................... 143 2.3. The Loss of the Clerical State .................................................................. 146 2.4. More Serious Acts ................................................................................... 148 Chapter 6: Justice for Religious .............................................................. 155 1. The law and Its Application ................................................................ 156 1.1. Law and Obedience ................................................................................. 156 371 1.2. The Protection of Rights and Obligations ................................................ 158 2. Justice for Religious ............................................................................ 168 2.1. Departure from Institutes ......................................................................... 169 2.1.1. Voluntary Departure from an Institute ....................................... 170 2.1.2. The Departure of a Novice or a Religious in Temporary Vows. 170 2.1.3. Imposed Exclaustrations .............................................................. 171 2.1.3. Explulsions ..................................................................................... 173 2.1.4. The Consequences of Expulsion ................................................... 177 2.2. Other Recourse for Consecrated Persons ................................................. 178 3. Justice for Institutions of Consecrated Persons ................................... 179 3.1. Creation and Suppression ........................................................................ 179 3.2. Property Rights ........................................................................................ 180 3.3. The Management of Institutes ................................................................. 181 Chapter 7: Aministrative Justice in the Face of Charisms ................... 183 1. Private Revelations.............................................................................. 183 1.1. The Law on Private Revelations .............................................................. 187 1.2. The Difficulties Encountered ................................................................... 190 1.3. The Tests Imposed ................................................................................... 193 1.3.1. Sanctions Against "Seers and Friends ......................................... 194 1.3.2. Sanctions against Parish Priests and Religious Favorable to the Apparitions............................................................................................... 200 1.3.3. Sanctions on Pilgrims .................................................................... 202 1.4. The Path of Recourse and Justice ............................................................ 204 2. New Religious Movements and Alleged Sects.................................... 209 2.1. The Applicable Law ................................................................................. 210 2.2. Difficulties and Sanctions ........................................................................ 213 2.3. Possible Recourses .................................................................................. 215 Chapter 8 : Administrative Justice for Dicasteries................................ 217 1. Recourses in Relation to Each Congregation ...................................... 220 1.1. Congregation for the Doctrine of the Faith .............................................. 220 1.2. Congregation for the Eastern Churches ................................................... 224 1.3. Congregation for Divine Worship and the Discipline of the Sacraments 224 1.4. Congregation for the Causes of Saints ..................................................... 226 372 1.5. Congregation for Bishops ........................................................................ 226 1.6. Congregation for the Evangelization of Peoples ..................................... 227 1.7. Congregation for the Clergy .................................................................... 227 1.8. Congregation for Institutes of Consecrated Life and Societies of Apostolic Life ................................................................................................................. 228 1.9. Congregation for Catholic Education ...................................................... 229 2. Recourses to Other Dicasteries ........................................................... 230 2.1. The Secretariat of State ............................................................................ 230 2.2. Dicastery for the Laity, Family and Life .................................................. 230 2.3. Dicastery for Promoting Integral Human Development .......................... 231 2.4. Administration of the Patrimony of the Apostolic See (APSA) ............... 232 2.5. Labor Office of the Apostolic See (ULSA) ............................................. 232 2.6. The Roman Rota ...................................................................................... 233 2.7. The Apostolic Signatura........................................................................... 233 Third Part: Commentary ......................................................................... 235 Chapter 9: Administrative Justice for Dicasteries................................. 239 1. Stages of the Procedure ....................................................................... 239 1.1. The Preliminary Stages ............................................................................ 240 1.1.1. The Initial Decree .......................................................................... 240 1.1.2. The Ex Gratia Recourse ................................................................ 243 1.1.3. Hierarchical Recourse ................................................................... 244 1.1.4. The Statement of the Dicastery .................................................... 245 1.2. Contentious-Administrative Recourse ..................................................... 246 1.2.1. The Preliminary Decision of Admissibility .................................. 247 1.2.2. The Decision of the Congress ........................................................ 250 1.2.3. Recourse to the College of Fathers ............................................... 251 1.2.4. The End of the Dispute.................................................................. 252 1.2.5. The Final Decision of the College ................................................. 253 1.3. Related Cases and Their Effects .............................................................. 254 1.3.1. Incidental and Related Cases........................................................ 254 1.3.2. Suspensive Effect ........................................................................... 254 1.3.3. Restoration of the Previous Situation .......................................... 255 1.3.4. Repair of Damages ........................................................................ 256 373 1.3.5. Implementation of the Decision .................................................... 258 1.4. Case Law on Procedure ........................................................................... 258 1.4.1. General Procedures ....................................................................... 259 1.4.2. Specific Procedures ....................................................................... 260 2. The Statistical Results ......................................................................... 261 2.2. The Number of Recourses Filed .............................................................. 261 2.3. The Origin of the Recourses Filed ........................................................... 263 2.4. The Type of Petitioners ............................................................................ 264 2.5. The Outcomes of the Recourses Filed ..................................................... 264 2.6. The Length of Time for Processing Recourses ........................................ 269 3. Reconciliation and Mediation ............................................................. 270 4. Cross-Cutting Aspects ......................................................................... 270 4.1. Le Petitioner ............................................................................................ 271 4.2. The Difficulties of the Procedure ............................................................. 271 4.2.1. Langage .......................................................................................... 272 4.2.2. Access to Information and to the Secret ...................................... 274 4.2.3. The Advocate ................................................................................. 276 4.2.4. The Witnesses................................................................................. 279 4.2.5. The Evidences ................................................................................ 279 4.2.6. Deadlines ........................................................................................ 280 4.2.7. The Cost of Justice, and the Payment of Expenses ..................... 282 4.3. The Right of Defense, and of Vindication ............................................... 284 Chapter 10: Conciliation and Médiation ................................................ 291 1. Ecclesiastical Mediation...................................................................... 293 1.1. Ecclesiastical Mediation in France ................................................... 296 1.1.1. Diocesan Councils of Mediation ................................................... 297 1.1.2. Mediation in Catholic Education ................................................. 302 1.2. Ecclesiastical Mediation around the World ............................................. 303 2. Mediation in Civil Society .............................................................. 307 2.1. Methodes of Mediation ..................................................................... 307 2.2. Mediation Overview ......................................................................... 309 2.3. Mediation in Christian Denominations ............................................. 312 374 Chapter 11: Prospects for Development ................................................. 317 1. Preventing Recourse............................................................................ 320 1.2. Specifying Administrative Law ............................................................... 322 2. Improving Administrative Justice ....................................................... 324 2.1. Regulate the Field of Justice .................................................................... 324 2.2. Simplify the Recourse Procedure ............................................................ 327 2.3. Decentralization of Recourse Procedures ................................................ 328 2.4. Using E-Justice ........................................................................................ 330 3. Developing Information and the Formation of the Faithful ................ 333 3.1. Is it Legitimate for the Hierarchy to Impose Sanctions? ......................... 334 3.2. Is it Lawful to Use Justice? ...................................................................... 336 3.3. Is it Possible to Make Recourse to Justice? ............................................. 337 3.4. Is it Desirable to Use Justice? .................................................................. 338 3.5. Is it Just to Resort to Justice? ................................................................... 339 3.6. Is it Necessary to Promote Administrative Justice? ................................. 342 Chapter 12: Final Conclusions ................................................................ 345 1. Conclusion ...................................................................................... 345 2. Canonists without Borders .................................................................. 347 2.1. Providing Assistance to Ecclesial Institutions ......................................... 348 2.2. Providing useful information for canonists and faithful ................... 350 2.2.2. Compendium of Jurisprudence .................................................... 351 2.2.3. Good Digital Practices ................................................................... 352 2.3. Orienting the Catholic Faithful ................................................................ 352 2.4. 3. Structuring Itself Legally .................................................................. 355 A last message ....................................................................................... 356 Main Sources et bibliography .................................................................. 359 Table of Illustrations ................................................................................ 369 Table of Contents ...................................................................................... 369 375 I A beautiful symbol: The Ecclesiastical Court of Cotonou is settled in the Mercy Tower. Canonists without Borders 2, rue de Frileuse, 91400 Gometz-la-Ville, France yves.alain@canonistes.org ; www.canonistes.org 376

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