Inquisition

PERQUISITION. — This is a search that may be carried out coercively in order to secure material evidence for the proceedings or to arrest a suspect or an escaped person.

The effective conduct of proceedings sometimes requires that certain objects be made available or that particular persons be present. The law ensures this through procedural coercion, one application of which is precisely that of searches ordered by the judge.

I. IN ITALIAN LAW

Since in Italy searches are permitted as exceptions to the ordinary guarantees of individual liberty, the law, in arts. 333-35 of the Code of Criminal Procedure, lays down particular rules; the special regulation of searches is in fact inspired by the interest of limiting and regulating the necessary restrictions upon those liberties guaranteed by the Constitution (arts. 13 and 14), and by the aim of not offending personal modesty, especially that of women.

Searches are personal and domiciliary. The term domicile is not here used in the technical sense referred to in art. 43 of the Civil Code, but in that of an individual’s dwelling. Searches may take place before proceedings, during the formal investigation, or even during trial. They are ordered by the magistrate by an unreasoned decree and are carried out, where necessary, with the assistance of the public force (art. 332 of the Criminal Code). A report of every search is drawn up immediately after the operations have been completed (art. 336 of the Code of Criminal Procedure). The objects sought and found in searches are seized. In particular, a personal search differs from a bodily inspection (art. 310 of the Code of Criminal Procedure), because the latter is directed toward the direct ascertainment of an item of evidence, whereas the former is directed not toward the immediate acquisition of evidence, but toward that which may be suited to furnish evidence. Search also falls within the activity of the judicial police (art. 224 of the Code of Civil Procedure) and is expressly provided for in numerous special laws of an administrative character.

2. Timing

Since the p. serves the review, it must be carried out during the ordinary or pre-introduction stage of the cause; preferably, either before the informative process super fama or during that process (cann. 2038 § 1 n. 1, 2127 n. 1, 2035). The sole exception contemplated by the CIC concerns the causes of martyrs, in which the p. may take place even after the introduction of the cause; but in that case, obviously, the Ordinary will no longer act iure proprio, but iure delegato ab Apostolica Sede and according to the instructions of the Promoter General of the Faith (can. 2048). B) THE COMPETENT AUTHORITY AND THE SUBJECT MATTER OF THE P. —

3. Competent authority

For the p., as for the other ordinary processes, the competent authority is the Ordinary of the place (cann. 198 § 2 and 2002) where the servant of God died or the miracles occurred (can. 2039 § 1), if the cause proceeds by the non-cultus route; or where public worship is rendered or the relevant documents are located if the cause proceeds by the cultus route, always without prejudice to the right of prevention in the event of several Ordinaries (cann. 2126 and 1568).

4. Subject matter

The subject matter of the p. in the broadest sense comprises all writings authored by the servant of God: published and unpublished, public, private, or intimate in character, long and brief, written in his own hand or drawn up at his order (can. 2042). The writings of Supreme Pontiffs whose beatification has been proposed also constitute the subject matter of the p.; exempted from it are only those, quae vim legis, vel quae negotia et regimen universalis Ecclesiae respiciunt... cum a Papa provenerint vel tamquam ex Cathedra docente veluti supremo Ecclesiae Duce et Pastore (Benedetto XIV, De serv. Dei beatif. et can., l. II, c. 26, a. 4, Venezia 1764, p. 164 ff.). C) CONSTITUTION OF THE TRIBUNAL AND VARIOUS ACTS. –

5. The tribunal

Following a petition (libellus supplex) from the postulator of the cause (cann. 2038 § 2 and 2127), provided that it is deemed admissible (can. 2038 and Litt. encycl. S.R.C. die 12 mart. 1631), or ex officio (can. 2044), the Ordinary of the place, in accordance with can. 2040 §§ 1 and 2, must first constitute the tribunal by a special decree or rescript. The tribunal is to consist either of one judge or of three judges proceeding collegially; of the promoter of the faith (can. 2011 §§ 1 and 2); of the notary (can. 2113 § 1); and of the cursor (can. 2037 § 3). A single-judge tribunal may be established only when the Ordinary of the place (cann. 1999 § 3 and 2002, which excludes the Vicar General, and 2039 § 1) reserves to himself the task of initiating the process (can. 2040 §§ 1 and 2), or when this task is entrusted to a bishop. In other cases, there is a collegial tribunal with one delegated judge and two associate judges, to be chosen from among the synodal judges.

6. The edict

Among the initial acts of the search, the first place is occupied by the promulgation of the edict or proclamation, in the vernacular and in printed form, by which the Ordinary commands all the faithful subject to him, enforcing the precept also with spiritual penalties, to report to the tribunal, within a specified period, the writings of the servant of God, whatever their nature, content, or form, whether possessed by themselves or by others (cann. 2023-25, 2042-43 § 1). If the servant of God whose cause is being considered was a religious, the edict must also be published in each house of his Institute (cann. 488, 2043 § 2, 2025 §§ 2, 3). For greater assurance, the CIC specifically obliges the promoter of the faith to ensure that publication of the edict takes place wherever it may be presumed necessary or expedient (can. 2043 § 3).

7. Examination and oaths

Once the period established in the edict has elapsed, the procedural examination takes place, together with the juridical delivery of the writings, of those who have presented them and, naturally, of the postulator, who, in addition to the oath already taken, must now, among other things, swear that he has diligently carried out his private and collateral search (can. 2047). In the case of a religious woman servant of God, the Superior General of her Congregation must swear that she has conducted a diligent search, that she has delivered all the writings in her possession, and that she is unaware of any other persons, even outsiders, who may still retain writings (can. 2047). When the search concerns a monastery of enclosure, the tribunal itself must go there and perform the necessary acts.

8. Particular cases

In the course of the search, the following cases, among others, may arise: a) that someone has failed to comply with the duty of presenting the writings; b) that the person presenting them wishes to retain the originals; c) that the writings are presented only in copies already prepared; d) that some writings are located in another diocese; e) or in a public library or archive. In the first case, the tribunal will proceed according to the circumstances, either by having the notary send an appropriate summons or in some other manner. In the second case, it will have an authentic apograph prepared (can. 2045 § 1). In the third case, it may be satisfied with the copy, provided that its authenticity is certain. For the fourth case, a rogatory process is provided for (can. 2044 § 2); for the resolution of the fifth, the provision of can. 2036 §§ 2, 3 applies (can. 2045 § 2).

9. Acts and writings

It is the duty of the notary to describe diligently not only all the acts performed by the tribunal or at its order, from first to last, but also the number and nature of the writings (can. 2044), so that a complete catalogue may result; these acts must then be signed by the Ordinary or his delegate and bear the seal of the Ordinary (can. 2046).

10. Abbreviated form of the search

If it is established with certainty to the Ordinary that all the writings have already been collected by the postulator or by someone else, or that they have all been lost, or again that the servant of God neither wrote nor ever dictated anything, the tribunal may reduce the search to a single act in which, with all due solemnities, the writings and the deposition of the postulator or witness are received, or merely the instrument attesting to their nonexistence is drawn up.

11. Transmission of the process to Rome

Since examination and judgment concerning the writings are reserved to the S. Congr. of Rites (Revision, can. 2065), the Ordinary, once the search has been completed, must send to Rome the writings collected, together with an authentic copy of the process concerning the investigations (the original remains in the Curial archive), duly signed by the tribunal and bearing the seal of the Ordinary (can. 2061). The packet will be accompanied by the Ordinary’s letters to the cardinal prefect of the S. Congr. of Rites.

12. Discovery of other writings

If, after the search and during the course of the cause, other writings come to light, they must immediately be sent, without any procedural solemnity, to the S. Congr. of Rites (to the cardinal prefect or to the general promoter of the Faith), which will not proceed further with the cause until the new writings have undergone revision (can. 2062).