PROCESS. - In a broad sense, "process" means a body of norms that regulate and govern any procedure directed toward the ascertainment and definition, or the realization, of a legal situation or of a juridical act or transaction. A procedure, therefore, which may be judicial or administrative or even directed toward the formation of legislative norms; it may be solemn or summary, ordinary or exceptional, oral or written, or predominantly oral or predominantly written or essentially documentary, etc.
In the canonical sense, however, two fundamental types of process are to be distinguished: the judicial one, dealt with in cann. 1552 to 1916 and 1933 to 1998, and the administrative process; of a process, or more precisely of a procedure directed toward the elaboration of legislative norms, in canon law one cannot strictly speaking speak, also because the Supreme Legislator in the Church is, ex natura rei, legibus solutus.
I. JUDICIAL PROCESS
Judicial p. is the body of norms directed to the practical realization of an action (v. ACTION), that is to say the body of formal norms through which a concrete will of the law is ascertained by a judge (v.), that is by an organ which substitutes its own objective activity for the activity of the private or public parties (v. PARTIES): whence the definition of can. 1552 § 1: « Nomine iudicii ecclesiastici intelligitur controversiae in re de qua Ecclesia ius habet cognoscendi, coram tribunali ecclesiastico, legitima disceptatio et definitio ».
1. Historical notes
Originally the canonical judicial p. derived from three sources or, more properly, drew its structure from three bodies of norms: the Roman, which was always predominant, the Germanic, and the purely canonical element, which sprang from the very connective tissue of the perfect ecclesiastical society and also from the tradition and mentality of Christian philosophical thought. With the evolution of the centuries and of institutions, this third element underwent ever broader development, so that from the famous constitution of Clement V of 1306 (v. CORPUS IURIS CANONICI), instituting the summary p., one arrives at the Tridentine Reforms, at the jurisprudence of the Sacred Roman Rota (especially important in the 17th century, v. TRIBUNALS OF THE HOLY SEE. III), at the procedural institutions of Benedict XIV (1741-48), and then at the instructions of the Sacred Congregation of 1840 and 1883 and at the Pian Reform of 1908.
The present Book IV of the CIC, in the final analysis, does not depart, as regards the origin of its institutions, from the traditional Roman, Germanic and purely canonical sources, while moderately receiving certain elements of the laws in force in the States and certain principles of modern procedural doctrine.
2. Necessity of the p
The necessity of a judicial p. normally depends on the contrast or disagreement of the parties, so that, precisely in view of that contrast, the intervention of the judge's substitutive activity becomes necessary; less frequently, especially in contentiosis, it happens that a determined juridical end cannot be realized through the agreement or acquiescence of the parties, but it is obligatory, despite the agreement, to have recourse to a formal judgment. Indeed, while in the positive law of the States there exist categories in which the intervention of the judicial authority is necessary, precisely because a determined effect cannot be realized except through a regular judgment (thus, for example, in Italian law the ascertainment of the crime and the application of penalties, cases de statu personarum, etc.), in canon law it may be doubted whether an analogous principle exists, since in canon law the application of penalties is proceeded to (and in practice normally) also by administrative means, and it is not excluded that saltem iure extraordinario, that is, with a prior pontifical Commission, the same controversies de statu personarum (and especially matrimonial ones) may be resolved within the framework of an administrative procedure.
II. CANONICAL JUDICIAL PROCESS
1. Characteristics
It must be admitted: a) that the canonical judicial process is predominantly written. In fact, the introductory act of the suit (the introductory libellus of the cause: can. 1706 ff.) must have written form; written form, the citation (can. 1711 ff.), the joinder of issue (can. 1726 ff.), the various petitions addressed to the judge in the course of the trial, and particularly those directed to the raising of an incidental question (can. 1837 ff.), the defenses of the parties (can. 1863), the judge's rulings (can. 1873), the means of challenge (can. 1878 ff.), while of every oral declaration, and especially of every proof, a written record must be drawn up. Nevertheless orality cannot be said to be completely excluded. By way of exception even the introductory act of the suit may be proposed oretenus (can. 1707), at the stage of the agreement or attempted agreement upon the doubt (litis contestatio); oral discussions between the parties are not infrequent, especially before the Tribunal of the Sacred Roman Rota; once the written defenses have been submitted, oral discussion, even if moderated - and ad aliquid illustrandum (can. 1866 § 2), and before the Tribunal of the Sacred Roman Rota rather on questions of fact than of law - may be granted; even the publication of the sentence may be made by citing partes ad audiendam sententiae lectionem solemniter factam a iudice pro Tribunali sedente (can. 1877).
b) That the canonical judicial process is, in relation to third parties, normally secret; publication constitutes the rule between the parties in the sense that the parties have the right to have knowledge of all the acts and documents and proofs of the cause, subject however to the exception constituted by can. 1623 § 3, whereby: « Imo quoties causae vel probationum natura talis sit ut ex actorum vel probationum exulgatione aliorum fama pericitetur, vel praebeatur causa dissidiis, aut scandalum aliudve id genus incommodum oriatur, iudex poterit testes, peritos, partes earumque advocatos vel procuratores iureiurando adstringere ad secretum servandum ». In substance the judge cannot take into account proofs that are not, at least under the bond of the oath de secreto servando, communicated to the advocates of the parties.
c) That in the canonical judicial process the inquisitorial principle is realized, in the sense that many activities can and sometimes must be carried out ex officio by the judge (thus, for example, the judge can ex officio raise the treatment of an incidental question [can. 1837]); retract ex officio a sentence affected by nullity (can. 1897 § 2); correct or revoke ex se, before the definition of the merits of the cause, an interlocutory sentence (can. 1841); order ex officio the intervention of a third party (can. 1853); declare ex officio the closure of the instruction - the so-called conclusum in causa (can. 1860 § 2) -; while particularly in the field of proof the ecclesiastical judge is furnished with broad inquisitorial powers, both for the interrogation of the parties, and for the ex officio citation of witnesses not produced by the parties (can. 1759), and for the admission and appointment of experts (can. 1792), and in the matter of judicial access and inspection (can. 1806), and in the matter of the oath not only suppletory (can. 1829), but also decisory (v. OATH).
However, if the judge's impulse in ecclesiastical controversies is prevalent, both in abstract theory and especially in practice, inasmuch as today 99% of trials concern matrimonial matters, that is to say controversies de bono publico or at least de salute animarum (that is, in causes in which the current positive ecclesiastical law allows broader powers of ex officio impulse), there is no lack, especially in causes of merely private interest, of activities exclusively or at least predominantly reserved to the impulse of the parties.
But above all the fundamental principle holds whereby the judge can never ex officio give the initial impulse to a cause, whence the rule nemo iudex sine parte, although this party may however sometimes be a public party, that is the Promoter of Justice (v.). There subsists, moreover, even in matrimonial causes a practice or at least a tendency, whereby it does not appear convenient that the judge, animated by excessive zeal, should be obliged to compel the parties (when none of them shows diligence) to treat, to instruct and to discuss the cause. The excess of zeal of some lower judges directed at compelling the parties, once the cause has been introduced or even instructed, to discuss it or else to renounce it, perhaps finds no justification in the Code, but above all finds no reasons of practical expediency in its favor.
If the parties intend to suspend the treatment of a matrimonial cause there is no reason to urge it on. Let the judge await the lapse of the peremptory term and, this having been verified, declare the suit lapsed (cann. 1736-1739); it is the most that he can and must do, without failing in his duty and above all in principles of expediency and convenience.
d) As a general rule the canonical process is studded with preclusive terms: a) preclusions for proposing claims and exceptions (can. 1628 ff.); b) preclusion relating to the change of the very formula of the joinder of issue (can. 1731, n. 1); c) preclusions in the matter of proof for the contumacious party (can. 1842 ff.) and the intervener in the cause (can. 1852 § 3); d) preclusions for the admission of new proofs after the publication of the testimonies and of the conclusum in causa (cann. 1786 and 1861 § 1), and at the stage of appeal (can. 1891 § 1). However the theoretical rigor of such provisions is practically tempered both by the legislative norm that allows the judge, from time to time, to derogate for slight, or grave or very grave reasons, and especially it is in fact (and must be) tempered as a consequence of a liberal application of these norms, especially in matrimonial causes (to which, as already said, 99% of ecclesiastical causes are today reduced). Add to this the consideration that in so delicate a matter no obstacles must be interposed, at whatever grade and stage of trial, to the search for truth. Rigorously preclusive are, as is obvious, the terms for the exercise of the means of challenge (cann. 1881, 1883, 1893, 1895, 1905, 1847).
It must also be considered that the rigor of some of these peremptory terms is tempered: a) by the length, in truth sometimes excessive, of some of them; such as those of the complaint of incurable nullity (30 years) and of the restitutio in integrum and also to deduce the evidenter neglectum legis praescriptum (4 years). b) That in matters de statu personarum (practically matrimonial) there are no terms, whence the appeal (even if sometimes called retractatio causae), as long as there is no double concurrence, is always admissible; as likewise, according to a certain doctrine, also accepted by Rotal jurisprudence, the appeal of the Defender of the Bond, pro sua conscientia (can. 1987) is also always admissible; while the faculty of the parties to request, even after two contrary sentences, a new instance, on the basis of new and grave arguments and documents, is not subject to peremptory terms (can. 1989).
e) In current canon law the principle of indirect communication prevails, inasmuch as the parties do not exchange and do not directly notify one another of the petitions, the requests and the very grounds of grievance, but indirectly, through the judge; and the trial itself does not begin with a citation notified from party to party but with a libellus presented to the judge (can. 1706), which the judge must admit (can. 1709): whence, once admitted, the citation is ordered by the judge himself (can. 1712).
2. Principal sources of the canonical judicial process
As has already been mentioned, the principal source of the current canonical judicial process comes from the canons that run from 1552 to 1916 and from 1933 to 1998, and which therefore comprise the first 24 titles of Book IV, with the exception of: a) title XVII, which deals with the execution of sentences, which in canon law must be recognized as a merely administrative activity; b) title XVIII, divided into two chapters: the first of which deals with an institution of a substantive nature, namely the transaction (v.), the second with compromise in arbitrators, which is indeed a procedural institution, but which a norm — in truth too brief and hasty, such as that of can. 1930 — regulates by referring to, and thus canonizing, the norms of the respective civil laws loci in quo compromissum initur. This fundamental body of procedural laws, which could well be called the current common procedural law of the Church, has the undoubted technical merit of regulating in a single body a complex matter, which before the Pian-Benedictine codification was contained in a jumble of sources disparate in time, in object and in structure. Before the CIC, in fact, the proceduralist had to take into account: a) various titles of the Decretals of Gregory IX; b) the celebrated Clementine Dispendiosa and Soepe, which instituted the summary process; c) the rules of the Chancery; d) certain provisions of the Council of Trent; e) the celebrated constitutions Dei miseratione and Si datam of Benedict XIV for the processes of matrimonial nullity and of Sacred Ordination; f) numerous other pontifical Constitutions; g) various instructions of the Roman Sacred Congregations (S. Congr. Ep. et Reg. 26 March 1886; Concilio 22 Aug. 1940; S. Uffizio 20 June 1883, etc.); h) and finally the procedural norms of the Sapienti Concilio (29 June 1908) with the attached Leges propriae of the S. Rota and of the Apostolic Signatura and the subsequent Regulae servandae (4 Aug. 1910; 6 March 1912; 3 Nov. 1915).
The current common procedural law is moreover completed and sometimes derogated: a) by the norms in force at the Tribunal of the S. Romana Rota (29 June 1934) and the related integrations consisting of normative measures, of resolutions approved by the Plenary of the Auditors and sometimes confirmed by the Supreme Pontiff, etc. (v. G. Pinna, Praxis iudicialis canonica, Rome 1952). There seems to be no doubt that the special norms of the S. Romana Rota, even if they may sometimes be considered to conflict with the norms of the common law, prevail over it: b) by the norms in force at the Tribunal of the Apostolic Signatura, which are still those of 29 June 1908 and 6 March 1912, updated in certain particulars not so much by formal measures as by a constant practice; c) by the norms issued by the Sacred Congregation of the Sacraments for cases of nullity of marriage, of 24 July 1936. There is discussion of the validity of some — in truth few — among these norms which appear to conflict with the common law. The most authoritative doctrine, which also has in its favor some precedent drawn from the jurisprudence of the Rota, is rather of the view that the norm of the instruction is ineffective if it should prove contrary to the law of the Code. Special norms for particular procedural institutions are contained in norms issued by the Sacred Congregation of the Holy Office and by the Sacred Congregation of the Sacraments.
It should be noted moreover that for the faithful of the Oriental rite there is now in force a complete procedural regulation constituted by the motu proprio of 6 Jan. 1950 (AAS. 42 [1950], pp. 5-120). This regulation, which in the end constitutes Book IV of the future CIC pro Ecclesia Orientali, appears far more valuable than Book IV of the CIC pro Ecclesia Latina, inasmuch as it was elaborated taking into account the drawbacks of a practice of more than thirty years and the criticisms that doctrine had raised in subiecta materia.
3. General structure of the common judicial process
It can be discerned through reference to specific entries of this Encyclopedia: a) for the judge and his competence see the entries: COMPETENZA; GIUDICE ECCLESIASTICO; PRESIDENTE DI TRIBUNALE; TRIBUNALI ECCLESIASTICI; TRIBUNALI DELLA S. SEDE. b) For the auxiliaries of the judge, v. DIFENSORE DEL VINCOLO; NOTATO; PERITO; PROMOTORE DI GIUSTIZIA. c) For the concept of party and defenders, v. ATTORE; AVVOCATO; CAPACITÀ; REO. d) For the introduction and beginning of the cause, v. CONTESTAZIONE DELLA LITE; DENUNCIA; ISTANZA; LIBELLO. e) For the proofs, v. CONFESSIONE (mezzo di prova); DOCUMENTO, v. Il d. nel diritto canonico; GIURAMENTO; PERITO; PRESUNZIONI; TESTIMONI. f) For the effects of the pendency of the suit, v. LITE PENDENTE; for the conclusion in causa, v. CONCLUSIO IN CAUSA. h) For the peremption of instance, v. DECADENZA; ISTANZA; PERENZIONE. i) For the id quod in iudicio deducitur, v. AZIONE; DELITTO; ECCEZIONE. l) For the concept of res iudicata, of sentence and of the related means of challenging the sentence v. APPELLO; DECRETO; QUERELA DI NULLITÀ; RESTITUZIONE IN INTEGRUM; SENTENZA; OPPOSIZIONE DEL TERZO.
The judicial process may be resorted to: a) whenever the matter in controversy is of a judicial nature, and it is of a judicial nature every time there is controversy over the injury of a subjective right or over the ascertainment of a juridical fact, provided that the action itself is not directed to the censure or annulment of an administrative measure (can. 1601). Truly this is one of the most serious and most obscure points of the current canonical procedural law. While by some it would be wished, and perhaps rightly, to admit judicial action every time a subjective right exists, even if injured by an administrative act (with the natural exception of cases in which the canonical norm, by expressly denying judicial action, weakens the subjective right into a legitimate interest), by others, who have in their favor a prevailing tendency of Rotal jurisprudence and the constant practice of the Sacred Congregations, the norm of can. 1601 is understood in an extremely rigorous sense, namely in the sense that truly the existence of an administrative act precludes the action directed to the reinstatement of the injured right, even for the sole limited effects of compensation for damages. b) Whenever the judicial way has not been forestalled by the recourse that one party has made to a Sacred Congregation, without the other party having expressly raised an objection on the merits: this is the norm contained in the provision of no. 10, art. 11, chap. 3 of the Normae peculiares of the Sapienti Consilio. By this phenomenon of administrative acquisition, therefore, any controversy whatsoever, even if by its nature of a judicial character, can be excluded from the strictly judicial process, and remain definitively committed to the administrative way.
III. SPECIAL PROCEDURES
The ordinary canonical process, as already mentioned, is governed by the aforementioned titles of Book IV of the CIC. This is the ordinary process, which, however, does not comprise merely the pure and simple procedure relating to the bringing, development and definition of a suit, including also at the stages of challenge; but also the discipline of the prerequisites of the action and of the process, and even the configuration of certain special actions such as rei sequestratio et inibitio exercitii iuris (cann. 1672-75, v. SEQUESTRO; the new work and the feared damage [1676-78]), the nullity (v.) of acts (1679-83); the rescissory actions and actions for restitution in full (v. AZIONE and cann. 1684-89); the possessory remedies (cann. 1693-1700). In substance it is not a book of merely formal content, inasmuch as it regulates certain institutions pertaining rather to substantive law than to procedural law.
1. Criminal process
This body of norms, which has precisely been called the ordinary canonical process, is applicable to the generality of contentious processes, that is, of processes that concern civil and not penal matter; this as a principle of general application. However, the criminal trial referred to in cann. 1933-59, with the exception of particular norms pertaining to the denunciation (v.), to the preliminary investigation (inquisitio, v. INQUISIZIONE GIUDIZIALE), to the correction (v.) of the offender (which is a means by which the criminal process can be avoided if the accused immediately confesses and the hypothesis of cann. 1948-49 does not obtain), to the accusation by the Promoter of Justice (an accusation which, it should be well noted, is not obligatory as is the action of the Public Prosecutor under lay codes of criminal procedure, but depends on the precept of the Ordinary, can. 1954), the criminal trial, we were saying, with the exception of these provisions which are rather integrations than modifications, is regulated in its structure by the same norms that regulate the contentious process. While therefore, especially in the states of continental Europe, one is accustomed to contemplate a penal process which, by its characteristics of orality, publicity, procedural concentration, etc., differs greatly from the contentious process, in canon law the structure of the two processes is substantially identical; that is, in it, servatis servandis, there occurs the same phenomenon of amalgamation of the two procedures that, in a certain sense, is found in English law, save naturally that in English law the principle of orality and publicity prevails, whereas in canon law the principle of written form and secrecy prevails.
2. Summary process
The canonical process, whether contentious or criminal, as it results from the body of canons that govern it, is undoubtedly a formal, cumbersome procedure. The judge is indeed given the power to render it easier, by setting short terms, by closing the investigation at a certain point with a declaration that he is sufficiently informed of the truth of the matters, by deferring to the merits the definition of incidental questions which, treated separately, would entail great loss of time; but apart from these powers and faculties of the judge, of which he cannot be obliged to make use, there does not exist in current canon law a summary or brief process as opposed to the ordinary or solemn process. The new procedural order for the faithful of the Oriental rite (published on 6 Jan. 1950, arts. 1-576; AAS, 42 [1950], pp. 5-120), on the other hand, knows the process before a single judge, which may well be called a summary process (cann. 452-67). The only form of summary process that the current Code of Canon Law knows is a special type of matrimonial process, the documentary matrimonial process of the so-called excepted cases (cann. 1990-92).
3. Matrimonial process
It must be premised that the matrimonial process is also substantially regulated by the norms of the ordinary contentious process. These norms are integrated by cann. 1960 to 1992, which treat of the forum competent for matrimonial causes (cann. 1960-65), of the formation of the Tribunal (which must always be collegiate; cann. 1966-69), of the rights and duties of the Defender of the Bond ([v.]; cann. 1968-69), of the right to accuse the nullity of marriage (cann. 1970-73), of witnesses (v.), and especially of the so-called testimony of the septima manus, in causes of impotence and non-consummation (cann. 1974-75), of bodily inspection and expert reports in causes of impotence and non-consummation and of defect of consent through insanity (can. 1976-82), of the publication of the process, the conclusion of the case and the sentence (cann. 1983-85), of appeals against sentences issued in subiecta materia (cann. 1986-89), and finally of the process of excepted cases (cann. 1990-92).
The grave questions that have arisen concerning the capacity of the parties to accuse the nullity of the marriage they have contracted are well known. After many doctrinal and jurisprudential uncertainties, the clear provisions issued by the Commission for the Authentic Interpretation of the CIC have fixed the principle that only the spouse who was the direct and deliberate cause of the nullity or of the impediment may be excluded from the right to accuse (Comm. interpr. CIC, 12 March 1929; 17 Feb. 1930; 17 July 1933; 22 March 1939; 27 July 1942; 6 Dec. 1943; 3 May 1945; 4 Jan. 1946). Other controversies have been occasioned by can. 1872, that is, when the question was of accusing, for certain patrimonial effects, the nullity of a marriage after the death of one or of both spouses. Also well known is the broad possibility of requesting a new instance of judgment, even after two conforming sentences, contrary on the basis of new arguments and documents (res nova et gravis, can. 1989, coll. 1993). It is likewise well known that, since sentences de re matrimoniali never pass in rem iudicatam, it is possible, even many years after the publication of the first contrary sentence, freely to treat a second grade of judgment. From this characteristic, proper to matrimonial causes, of never passing in rem iudicatam, there derive profound modifications to the structure of the ordinary contentious process.
The peremptory terms, the forfeitures, the preclusions of ordinary processes have no reason to exist in a matrimonial process, in which the search for truth takes precedence over the very requirement of a res iudicata.
Particular mention deserves the matrimonial process of excepted cases, because, as has been mentioned, it represents an example of abbreviated or summary judicial process in the current canonical procedural order.
In the cases exhaustively listed in can. 1990, where the existence of the impediment results from a certain and authentic document and one not subject to contradictions or exceptions, and with equal certainty it results that no dispensation was granted, the Ordinary, having cited the parties and with the intervention of the Defender of the Bond, may, without observing the other solemnities of the process, issue a declaratory sentence of nullity. There is therefore no need for the formation of a collegiate Tribunal, and the Defender of the Bond is not obliged to propose an appeal against this declaratory sentence of nullity, as he is instead in ordinary cases. Pro sua conscientia, however, he may appeal, and the judge of Appeal will either confirm the sentence of the Ordinary of first instance, or remit the acts to the Tribunal of first grade, so that it may proceed according to the ordinary norms (cann. 1991-1992). In truth, the nature of this process has been discussed among authors, some of whom considered it administrative and not judicial. By now it is no longer doubted (also in view of what art. 227 of the Norme of the S. Congr. of the Sacraments for matrimonial processes provides — Ordinarius iudex agens) that the procedure of the casus exceptus is a true and proper judicial procedure, however summary, abbreviated and predominantly documentary.
IV. P. FOR SACRED ORDINATION (v. ORDINE E ORDINAZIONE, NULLITÀ di). These p. are sometimes dealt with judicially, but more frequently administratively, and in any case it is for the Congregation of the Holy Office or of the Sacraments, that is, for an administrative body, to order one or the other procedure.
V. PROCESS SUPER RATO ET NON CONSUMMATO
It is an essentially administrative procedure, regulated in part by cann. 1962-66 ff., 1973-74 ff., but above all by the instruction of 7 May 1923 of the Sacred Congregation of the Sacraments. It should be noted, however, that before the Tribunal of the Sacred Roman Rota the ascertainment of the non-consummation of the marriage and of the just causes for the dispensation may be discussed with judicial procedure, when the doubt an sit consulendum Sanctissimo Duo etc. has been, by prior Pontifical Commission, agreed upon subject to the doubt de nullitate matrimonio (v. MATRIMONIO, VII. M. RATO NON CONSUMMATO).
VI. PROCESS OF PERSONAL SEPARATION
While perpetual separation on the ground of adultery must be pronounced following a judicial proceeding, temporary separation, sive ad definitum sive ad indefinitum tempus, can be decreed by the Ordinary, even through an administrative procedure (can. 1941; v. CONIUGI, II. Separazione personale dei c.).
VII. PAULINE PRIVILEGE
The Pauline privilege (v.), and the special cases referred to in can. 1125, are essentially administrative processes.
VIII. PROCESS OF BEATIFICATION AND CANONIZATION
The process of beatification and canonization (v. BEATIFICAZIONE; CANONIZZAZIONE; CONGREGIAZIONI ROMANE, VIII. S. Congr. dei Riti; PERQUISIZIONE, II. P. degli scritti; PROMOTORE DELLA FEDEI), is an administrative process.
IX. CANONICAL ADMINISTRATIVE PROCESS
Civil-law doctrine recognizes the category of so-called jurisdictional remedies before administrative bodies exercising a special judicial activity (for example, the Council of State, the Court of Accounts, etc.). No such category exists in canon law. The same civil-law doctrine also recognizes the category of so-called administrative appeals, such as the hierarchical appeal, the remonstrance, and the extraordinary appeal to the Sovereign. Doctrine, moreover, points out that these remedies, although they have an administrative and not a jurisdictional character, nonetheless have a juridical nature, inasmuch as to the right of a private individual to appeal there corresponds an obligation of the public administration to rule on the appeal, an obligation sometimes sanctioned by a jurisdictional penalty.
Now then, in canon law, while there exist appeals that can be equated with the hierarchical appeal of the administrative law of the State (v. RICORSO), inasmuch as they are founded on the hierarchical order (appeal from the decrees of the Ordinary to the hierarchical Superior, exceptionally the archbishop, ordinarily the Holy See and, on its behalf, a Sacred Congregation), while there exists the possibility of remonstrance (that is, of appealing again to the same Superior so that, better informed, he may re-examine the matter); while there exists and is widely applied the exceptional appeal to the Sovereign (so that at any grade or stage of procedure and from any administrative provision [and even judicial one] the faithful are given the faculty of appealing directly to the Holy Father; cf. can. 1569 § 2), it cannot however be said that these remedies always have a juridical nature (with the exception, that is, of certain procedures specifically determined), precisely because there exists no obligation of strict justice on the part of the Superior (already approached) to re-examine the matter on the basis of new information, and still less an obligation of strict justice, which could always be pursued in the external forum, on the part of the Sacred Congregations or of the Holy Father to take into consideration the appeals addressed to them, and naturally there exist no jurisdictional sanctions for such obligations. There exists therefore in canon law an administrative procedure, one might say, of common law (not having a juridical character, because it lacks a true obligation of the administrative body to rule on the appeal), clothed nonetheless in forms and also in certain guarantees that practice, more than written law, has served to establish.
The introductory act of this process is a written petition; the party against whom the petition is directed is informed by the petition itself, which indeed is normally served on or notified to that party in its entirety. The arguments and counter-arguments of the parties are, in general, made known to the parties themselves; the production of documents and extrajudicial expert opinions is granted; the documents and acts produced by one party are normally made known to the other; testimonial proofs and on-site verifications, especially when the procedure is conducted before a Roman Congregation, represent genuine exceptions. Normally declarations of witnesses are produced with signatures authenticated by a competent notary. Only in very rare cases does the Congregation proceed to direct verifications, sending a visitor to the site. As a rule it requests pro informatione and a votum from the Ordinary, but the Ordinary's votum and information remain secret from the parties. The provision that grants or rejects the appeal is normally not motivated, even though it is the fruit of laborious study and careful deliberation. The time limit for appealing is not mandatory; it is held, however, that when the appeal is brought within ten days of the notification of the provision, it has in certain matters (as, for example, in the matter of the temporary separation of spouses) a suspensive character. And since in the Roman Congregations, as is well known, there exists the Congress and there exists the Plenary session of the cardinals, the interested party may indeed request that a decision of the Congress be re-examined by the Plenary, but there exists no duty of the Congregation to grant this further petition; indeed, the granting of it is always left to the prudent discretion of the Prefect or to the higher intervention of the Holy Father. There is no obligation to make use of the services of an advocate or procurator; before certain administrative authorities the intervention of an advocate or procurator is not welcome, and is even forbidden; before others, instead, it is admitted with greater liberality.
These, then, are the general characteristics of the administrative process, but the CIC governs certain particular forms of administrative procedure, which are precisely those found in part 3 of Book IV. Now then, if not all of these procedures, at least the more important of them truly have a juridical character, inasmuch as they impose genuine obligations on the public administration and guarantee certain procedural rights to the interested parties. These are the procedure for the removal of irremovable pastors (tit. XXVII) and of removable pastors (tit. XXXVIII); the transfer of removable and irremovable pastors (tit. XXIX; v. AMOVIBILITÀ; AMOZIONE; INAMOVIBILITÀ); the procedure against clerics who do not observe the obligation of residence (v. tit. XXX), or who are suspected of concubinage (tit. XXXI, v. CONCUBINATO, IV. Il c. nel diritto canonico e civile italiano); or against the negligent pastor (tit. XXXII, v. NEGLIGENZA; PARROCO). Common characteristics of these procedures are the obligation of contesting the charges, the faculty of the interested party to adduce proofs, justifications or excuses in his favor, and above all the institution of the intervention, even if only in a consultative capacity, of two synodal examiners (v.) or of two consulting pastors, so that the Ordinary, before issuing a given provision, must hear their opinion; above all, the faculty of appealing to the Holy See, joined to the obligation of the Ordinary not to confer stably, pendente recursu, on others the benefice or parish of which the appellant has been deprived. For the procedure of removal of the irremovable pastor, v. RIMOZIONE.
Another form of administrative procedure is the declaration or imposition of a penalty per modum praecepti of can. 2225, in respect of which the criminal judicial procedure has, in practice, become a very rare exception; and suspension ex informata conscientia (v. SOSPENSIONE).