Inspection (Corporal, Real, and Local)

INSPECTION (Corporal, Real, and Local). - Recognition and access are two means of proof offered to the judge in order to give him the possibility of obtaining information about specific places, objects or persons, through his own personal intervention, elements of proof useful for the determination of the case.

The difference between the two institutions is given by the fact that recognition takes place for the most part in the tribunal, so that the examination of places escapes it, while access is carried out by means of the judge's movement and his direct examination in loco of persons and things relevant to the case.

In both cases, but more properly in the case of access, which has, under the aspect set forth, a broader meaning and a more marked singularity, the so-called direct inspection, ocular on the part of the judge, is realized: which inspection will be personal, real or local, according as it concerns persons, things or places. These are, as can be seen, two evidentiary means that have singular subjective and objective characteristics, in that, on the one hand, the judge may add the elements of his own personal evaluation to those that have been adduced in the proceedings by the parties and, on the other hand, especially as regards local inspection, he may give strong emphasis to those objective situations that, with difficulty and often incompletely, would be proven by expert or testimonial evidence.

From the technical-procedural point of view, recognition must be considered broader than access, in that it may or may not be an element of the latter. Inspection in the form of access, unlike that which is carried out by simple recognition, cannot be ordered except in cases of proven necessity and in the form of a decree (CIC, can. 1806), which must be issued auditis partibus and which must dictate, especially in relation to the purpose that the access is intended to pursue, the measures useful for the successful outcome of the proceeding, as well as the determination of the sum to be deposited for the special expenses to which the latter gives rise.

Inspection, whether in the form of access or in that of recognition, may be ordered both at the request of a party and ex officio in any kind of case and may also be carried out for future memory.

As for the time at which it may be carried out, it should be borne in mind that as a rule it is to be ordered during the evidentiary period (cf. Regulae Rotae, § 166).

Both recognition and access may be carried out by the examining or delegated judge (CIC, can. 1807). In that case it is evident that the evidentiary means loses somewhat its typical efficacy, which derives from the fact that the judge, by its use, must directly inspect the places, things and persons concerning the suit. But it is no less evident that, in the case of a collegiate judge, the practical usefulness is often recognized of delegating a member of the judging college to carry out the inspection.

Since inspection is an extraordinary means, it is logical that everything useful to make it exhaustive be carried out. Therefore the judge who carries it out is permitted to use on the spot the work of experts and to interrogate the witnesses produced by the party or indicated ex officio (can. 1810). The parties, for their part, are generally entitled to be present at the judicial recognition or access, either directly or through a procurator of theirs, saving to the judge the faculty of prohibiting such presence where there is well-founded fear that disorders or brawls may derive from it (can. 1809).

Judicial access (cann. 201 and 1367) cannot be carried out outside the territorial limit of the jurisdiction without the authorization of the bishop, to whom the area that is the object of the inspection is subject; should such authorization be denied (cf. Regulae Rotae, §§ 166-167), the inconvenience can be obviated by means of a request by verbal rogatory of the judge of the place.

The notary must certify (can. 1671) in the appropriate record the individual operations carried out with the judicial recognition or with the access.

The expenses of the recognition and of the access must be settled by the parties in the proportion and to the extent that apply in proof by witnesses or by experts. In particular, therefore, the expenses fell upon the party that requested the judicial inspection or upon both parties, where the inspection itself was requested by both parties or ordered ex officio, saving the definitive settlement of the judicial expenses.

From what has been said it results that the purpose of the inspection is, among other things, that of making known to the judge the exact value to be attributed to the other proofs by means of a more direct examination, on his part, of the state of the question.

Evidently both the one and the other of the two evidentiary means under discussion may be admitted ex officio, that is, without a prior request of the parties, even in cases of private interest.

The judge may also establish - where this is useful - that a description of the places be made in topographic tables or that a recognition be made of tables already exhibited in the proceedings (cf. Regulae Rotae, § 170).

Finally, it should be borne in mind that in criminal cases the access is for the most part ordered so that the judge may have an exact knowledge of what is called the corpus delicti.

Fernando Della Rocca