Perquisition

PERQUISITION. - It is a search that may be carried out coercively in order to secure for the trial material elements of evidence or to arrest the suspect or the fugitive.

The effective conduct of the trial sometimes requires having certain objects at hand or the presence of certain persons. The law secures 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 an exception to the normal guarantees of individual liberty, the law lays down particular rules in arts. 333-35 of the Code of Criminal Procedure; the special regulation of searches is in fact inspired by the interest in limiting and regulating the necessary restrictions on those liberties that are guaranteed by the Constitution (arts. 13 and 14) and by the aim of not violating personal modesty, especially that of women.

Searches are personal and domiciliary. The term "domicile" is not used here in the technical sense of art. 43 of the Civil Code, but in that of an individual's dwelling. Searches may take place before the trial, or during the formal investigation or even during the trial. They are ordered by the magistrate by an unmotivated decree and are carried out, where necessary, with the assistance of the public force (art. 332 of the Penal Code). A record is drawn up for every search immediately after the operations have been completed (art. 336 of the Code of Criminal Procedure). The things 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 aimed at the direct ascertainment of an element of evidence, whereas the former is directed not at acquiring the evidence immediately, but at what may be suitable for the evidence. A 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 nature.

Francesco Ercolani

II. IN CANON LAW

With the term p. (perquisitio scriptorum in causis sanctorum), in the procedure for beatification (v.), is designated the judicial inquiry, particularly thorough (cann. 2044 § 1, 2046, 2047 §§ 1-2), by which are collected the writings of a servant of God, whether the cause of beatification proceeds via non cultus (can. 2038 § 2 n. 1), or via cultus (can. 2127 n. 1). The terms processus scriptorum and processiculus diligenterum are also used, although by the latter is properly indicated only the body of procedural acts (or diligences), adopted in the p. (can. 2061).
A) PURPOSE AND TIME OF THE INQUISITION. - 1. Purpose. - The p. has as its purpose: a) to be certain that in the writings of a servant of God there is nothing contrary to the faith and to good morals (can. 2068), such as to constitute a peremptory obstacle to beatification (can. 2038 § 1); b) to avoid, in the case of an obstacle, wasting time and money uselessly (Benedict XIV, ep. Sollicitudini, 1 Oct. 1745), in preparing the subsequent processes; c) to know in a general way the character, the habit of the virtues or the lack of them in the servant of God (can. 2068). This is provided for by the "revision of the writings," a judgment of two or three theologian censors, discussed in the Ordinary Congregation (can. 2068-72), as soon as the process of the writings has reached the Congregation of Rites from the Ordinary (can. 2065). The introduction of the cause cannot take place unless it is first juridically established, among other things, that the doctrine of the servant of God is pure and that there is no obstacle regarded as insurmountable (can. 2038 § 1).

2. Time

Since the p. is ordered to the revision, it must be carried out during the ordinary or pre-introductory stage of the cause; and, preferably, either before the informative process super fama, or during that process (cans. 2038 § 1 n. 1, 2127 n. 1, 2035). The only 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, as is obvious, 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 OBJECT OF THE INQUISITION. - 1. Competent authority. - For the p., as for 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 via non cultus; or where public worship is rendered or the relevant documents are found, if the cause proceeds via cultus, always saving the right of prevention, in the case of several Ordinaries (cann. 2126 and 1568).

2. Object

The object of the p. in the broadest sense is all the writings of which the servant of God is the author: published and unpublished, of a public and private or intimate character, long and short, written in his own hand or drawn up by his order (can. 2042). The writings of the Supreme Pontiffs proposed for beatification also form the object of the p.; exempt 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 (Benedict XIV, De serv. Dei beatif. et can., l. II, c. 26, a. 4, Venice 1764, p. 164 ff.).
C) CONSTITUTION OF THE TRIBUNAL AND VARIOUS ACTS. - 1. The tribunal. - Following a petition (libellus supplex) from the postulator of the cause (cann. 2038 § 2 and 2127), provided it is deemed admissible (can. 2038 and the encyclical letter of the S.R.C. of 12 March 1631), or ex officio (can. 2044), the local Ordinary, in accordance with can. 2040 §§ 1 and 2, must, first of all, by a specific decree or rescript, constitute the tribunal, which shall consist either of one 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 cursitor (can. 2037 § 3). A single-person tribunal may be had only when the local Ordinary (cann. 1999 § 3 and 2002, which excludes the Vicar General, and 2039 § 1) reserves to himself the office of setting up the process (can. 2040 §§ 1 and 2); or when such office is entrusted to a bishop. In other cases, on the other hand, there is a collegial tribunal with one delegated judge and two assistants, to be chosen from among the synodal judges.

2. The edict

Among the initial acts of the p., the first place is occupied by the promulgation of the edict or bann, in the vernacular and in printed form, by which the Ordinary commands, arming the precept also with spiritual penalties, all the faithful subject to him to denounce to the tribunal, within a determined time, the writings of the servant of God, of whatever nature, content and form, possessed by themselves or by others (cann. 2023-25, 2042-43 § 1). If the servant of God whose cause is being treated was a religious, the edict must also be published in the individual houses of his Institute (cann. 488, 2043 § 2, 2025 §§ 2, 3). For every good purpose the CIC places a particular obligation on the promoter of the faith to strive so that the publication of the edict takes place wherever it may be presumed necessary or opportune (can. 2043 § 3).

3. Examination and oaths

Once the time fixed in the edict has elapsed, there takes place, with the juridical delivery of the writings, the processual examination of those who have presented them and, as is obvious, of the postulator who, in completion of the oath already taken, must now, among other things, further swear that he has diligently carried out his p., of a private and collateral nature (can. 2047). For a servant of God who is a religious, the Superior General of her Congregation must swear that she has made a diligent p., and that she has delivered all the writings she had and that she is not aware that other persons, even outsiders, still keep any writings (can. 2047). When the p. concerns a cloistered monastery, the tribunal itself must go there and carry out the necessary acts.

4. Particular cases

In the course of the p. there may arise, among others, these cases: a) that someone has not complied with the duty of presenting the writings; b) that the one presenting them wishes to keep the autographs; c) that the writings are presented only in a copy, already prepared; d) that some writings are located in another diocese; e) or else in a public library or archive. In the first case the tribunal will provide according to the circumstances, either by having the notary send an appropriate citation or in another way. In the second case it will have an authentic copy made (can. 2045 § 1). In the third case, it may content itself with the copy, provided the authenticity is certain. For the fourth case a rogatorial processicle is provided for (can. 2044 § 2); for the solution of the fifth, the provision of can. 2036 §§ 2, 3 comes to aid (can. 2045 § 2).

5. Acts and writings

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

6. Brief form of the p

If it appears 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 did not write and never dictated anything, the tribunal may restrict the p. to a single act in which, not without the due solemnities, the writings and the deposition of the postulator or of the witness are received, or else only the instrument of established non-existence is drawn up.

7. Transmission of the process to Rome

Since the examination and judgment of the writings is reserved to the S. Congr. of Rites (Revision, can. 2065), the Ordinary, once the p. is completed, must transmit to Rome the writings collected, with an authentic copy of the processicle of the diligences (the original remains in the archive of the Curia), duly signed by the tribunal and furnished with the seal of the Ordinary (can. 2061). The packet will be accompanied by the letters of the Ordinary to the cardinal prefect of the S. Congr. of Rites.

8. Discovery of other writings

If, after the p. and in the course of the cause, other writings come to light, these, without any processual solemnity, must be immediately sent to the S. Congr. of Rites (to the cardinal prefect or to the promoter general of the Faith), which will not proceed further in the cause unless the new writings have first undergone revision (can. 2062).

Nicola Ferraro