Competence

COMPETENCE. - Term used in legal language to indicate the specific objective capacity of the various judicial bodies, that is, that part of the power of jurisdiction which belongs concretely to each of them.

For canon law, no less than for civil law, competence is determined on the basis of 4 fundamental criteria: functional, objective, subjective and territorial. The functional criterion (competence by degrees) concerns the nature of the activity that the judge is called upon to exercise in a given trial, correlatively to the principle of the plurality of instances. The objective criterion concerns the value of the case or the special nature of its object (competence by subject matter and value). The subjective criterion relates to the particular quality and dignity of certain persons, in the event that they become subjects of a procedural relationship. The territorial criterion, finally, refers to the district within which the judge's activity must be carried out (competence by territory).

Of these criteria (which often interfere and combine with one another, so as not to allow a rigorous classification of the various titles of competence) the first 3 are absolute, that is, not subject to derogation or postponement by the parties (can. 1558); the fourth, on the other hand, is relative (can. 1559 § 2). It follows that incompetence by subject matter and by personal dignity must be raised ex officio by the judge, may be objected to by the parties at any degree and stage of the proceedings (can. 1628 § 2) and constitutes a ground of incurable nullity of the sentence (can. 1892 no. 1); whereas incompetence by territory, if it is not raised or objected to in limine litis, does not prevent the valid continuation of the trial.

Competence is generally established by law (legal forum); exceptionally, however, it may be determined by the superior or by the judge (commissarial or judicial forum). According to current law, the parties for their part cannot derogate from the rules on competence (can. 1559 § 1), except in the case where, in stipulating a contract, they have chosen a particular forum for the disputes inherent in it (can. 1565 § 2).

I. FUNCTIONAL COMPETENCE

Although it is not expressly regulated by the CIC under the title De foro competenti, there is no doubt that functional competence constitutes an indispensable prerequisite of the judgment on the merits, by virtue of the principle of the plurality of degrees of jurisdiction.

The ordinary judge of first instance in every diocese is the Ordinarius loci (that is, besides the residential bishop, the capitular vicar, the abbot or prelate nullius, the stably constituted apostolic administrator), who exercises judicial power either personally or through the tribunal (can. 1572 ff.). However, competent to hear in first instance the controversies concerning the temporal rights and goods of the bishop, of the mensa or of the diocesan curia, is the judge immediately superior, or, if the bishop consents thereto, the diocesan collegiate tribunal, formed by the official and the two senior synodal judges (can. 1572 § 2).

The ordinary judge of second instance is the metropolitan for cases decided by a suffragan bishop; whereas cases treated in first degree before the metropolitan shall be judged on appeal by that ordinarius loci whom the same metropolitan shall have designated, once and for all, with the approval of the Apostolic See.

For controversies between exempt religious and between religious houses, special jurisdictions of first and second instance are provided by the CIC, which likewise determines the particular attributions of the ordinary tribunals of the Apostolic See, which are the Sacred Roman Rota (v. TRIBUNALI ECCLESIASTICI) and the Signatura (v.).

Indispensable limits of functional competence must also be considered those within which the judge exercises his own jurisdictional power on the occasion of the correction of the sentence (for which the judge who issued it is competent) and of certain extraordinary means of challenge, such as the querela (v.) of nullity, the opposition of a third party (v.) and the restitutio in integrum (v.). Likewise, the competence of the judge in executive matters is to be regarded as determined on the basis of the functional criterion.

II. SUBJECTIVE AND MATERIAL COMPETENCE

After affirming in can. 1556 the principle of the full and absolute immunity of the Supreme Pontiff (Prima Sedes a nemine iudicatur), the CIC establishes (can. 1557 § 1) that reserved to the exclusive competence of the same pontiff are cases concerning heads of state, their children and successors, cardinals, pontifical legates and, limited to criminal cases, residential and titular bishops. To the tribunals of the Apostolic See are, on the other hand, reserved (can. 1557 § 2) contentious cases in which residential bishops and dignitaries equated with them are defendants, relatively to their property and personal rights; as well as those concerning dioceses or other moral persons directly subject to the Supreme Pontiff, such as exempt religious orders, religious congregations, etc.

Apart from these mandatory and non-derogable provisions, it should be noted that, by virtue of his immediate jurisdiction over all the faithful, the pontiff may, whether on his own initiative or at the request of a party, avoke to himself any judgment, at whatever stage and degree it may be.

In numerous cases the object of the case, independently of consideration of the subjects, influences the determination of competence. Thus, to the Congregation of the Holy Office is devolved the cognizance of criminal cases concerning heresy, sacrilege, simony, violation of the sacramental seal, solicitation in Confession, etc., and that of contentious cases concerning the Pauline privilege and the nullity of marriages between Catholics and non-Catholics. Thus, to the Congregation of Rites are reserved cases of beatification and canonization. Thus, the Congregation of the Sacraments is competent to judge processes «super matrimonio rato et non consummato» and cases in which the validity of Holy Ordination is challenged. Thus, for cases of matrimonial nullity to be decided in Italy, competence belongs to the 18 regional tribunals established by the motu proprio Qua cura of 8 Dec. 1938.

III. COMPETENCE BY TERRITORY

The fundamental rule is that contained in can. 1559 § 3, by virtue of which the plaintiff follows the forum of the defendant.

For certain causes, however, the law establishes a necessary forum, in the sense that they must be brought before a determined judge. Such are, according to can. 1560: 1) actions for recovery of possession (spoglio), for which competence belongs to the Ordinary of the place where the thing whose possession is in dispute is located; 2) causes concerning a benefice, even a non-residential one, for which the Ordinary of the place where the benefice is established is competent; 3) causes relating to the administration of goods, which must be decided by the Ordinary of the place where the administration was conducted; 4) causes concerning inheritances or pious legacies, which fall within the competence of the Ordinary of the place of domicile of the testator, unless it is a matter of the simple execution of a legacy.

Apart from these exceptions, the territorial competence of the judge is determined, in general, by the domicile (v.) or quasi-domicile (v.) of the defendant (can. 1561). Both the one and the other, whether real or legal, constitute concurrent forums, the choice among which, in the individual case, is left to the discretion of the plaintiff.

Anyone who is present in Rome may moreover be summoned before the tribunals of the City, but has the right to request that the cause be remitted to his own Ordinary; and anyone who has resided in Rome for more than a year may decline the forum of his own Ordinary and request to be cited before the Roman judge (can. 1564).

The "vagrant" (that is, one who has no domicile or quasi-domicile) must be cited before the judge of the place where he is currently residing; whereas for the religious, whether of simple vows or of solemn vows, the competent forum is that of the place where the house to which he is ascribed is located (can. 1563).

In concurrence with the forum of the defendant, the law establishes for certain cases an optional forum. Thus, actions relating to real rights may be brought before the judge of the place where the thing in dispute is located (can. 1564); for causes that take their origin from a contract, a party may be sued before the Ordinary of the place in which the obligation arose or is to be performed (can. 1565 § 1); in criminal causes, besides the judge of the domicile or quasi-domicile, the judge of the place where the crime was committed is also competent, even though the accused has afterwards departed from it (can. 1566); in matrimonial causes, the judge of the place where the marriage was celebrated is also competent (can. 1564).

IV. COMPETENCE BY CONNECTION OR CONTINENCE OF CAUSES

When two or more suits have in common some of the objective and subjective elements (res, causa petendi, personae) of which the respective claims are constituted, the case of connection arises; and this takes the specific form of "continence of cause" whenever, the parties being identical, the objective elements stand to one another in the relation of container to content.

Reasons of expediency and of procedural economy advise that connected causes be decided by the same judge; and this is precisely what can. 1567 prescribes. If they are already pending before different judges, they must be joined according to the criterion of prevention; that is, the judge who first cited the defendant will be competent to hear them in a single trial, provided, naturally, that the limits assigned to his functional or subject-matter competence do not stand in the way (can. 1568).

It is the common opinion that the exception of incompetence on grounds of connection may be raised ex officio, and put forward by the parties even after the joinder of issue.

Ferruccio Liuzzi