PREVENTION (of Jurisdiction). - It is the effect attached to the exercise of a priority, whereby one judge, by preventing the exercise of jurisdiction of another judge, who is likewise competent in himself, alone remains entitled to judge.
Prevention of jurisdiction can occur in two cases: in so-called mixed-forum cases, in which both the State and the Church are competent, and between different competing ecclesiastical tribunals.
I. IN CAUSES OF MIXED FORUM
Besides the causes that belong exclusively to the ecclesiastical forum, there are other causes that can be tried either in the ecclesiastical forum or in the civil one, and are therefore called causes of mixed forum.
They are either temporal by their own nature, but with an inseparable spiritual quality added, or spiritual causes that present some temporal aspect. Those causes, however, are not of mixed forum which the civil authority judges by concession of the Church, by concordat or otherwise: for example, those of separation of spouses, of the right of patronage, etc.
Causes of mixed forum can be criminal or contentious, and the latter can belong to the mixed forum either by their nature or by the quality of the persons. The following contentious causes are of mixed forum by their nature: acts and contracts accompanied by an oath, the wills of laypersons with attached legacies, the simple existence of a spiritual fact such as marriage, baptism, excluding the question of the validity of the act, etc.
Some of these causes have at present been remitted by the Church without further ado to the civil forum (for example, those concerning the civil effects attached to marriage, unless they are proposed as incidental and accessory to a question directly concerning the marriage: cann. 1016, 1961).
By reason of the quality of the persons, the causes of orphans, widows, etc., were once considered of mixed forum. Since today the authority of the State, in civilized countries, fully provides for the defense of these rights, they are left to the State. The criminal causes of mixed forum concern crimes that are repressed by both ecclesiastical and civil law (can. 2108). They concern crimes against life, liberty, property, good reputation and good morals, and certain crimes against religion, such as violations of corpses, of graves, of cemeteries, and violations directed against ecclesiastical persons. In all these contentious and criminal causes of mixed forum, the p. should be in force between the ecclesiastical tribunals and the civil ones (can. 1553 § 2). Consequently, if the suit were pending before the ecclesiastical tribunal, it could not be introduced before the civil one, and vice versa. In the ecclesiastical forum the suit is said to be pending from the moment of the citation (can. 1725, n. 5) and remains so as long as the parties or the judge have the possibility of performing some procedural act. Once the instance has been renounced or has lapsed, the process can be introduced anew before any tribunal.
Furthermore, in such matters the causes judged by the tribunals of the Church should also be valid before the tribunals of the State, and vice versa. The Church indeed considers the decision of lay tribunals as res iudicata. Since, however, the State today does not always observe respect for suits pending before ecclesiastical tribunals and for causes judged by the Church, the CIC establishes that he who, after having introduced the cause before the ecclesiastical forum, refers the same to the secular forum, is immediately deprived of the right to act, in the ecclesiastical forum, against the same person in the same cause and in what is connected with it, and may be liable to penalties under can. 2222, even without prior warning, if scandal has been given (can. 1554). The crime is consummated by the legally notified citation (can. 1725, n. 2). As regards criminal causes, since the State, generally, also here does not take ecclesiastical penalties into account, the Church, so that the guilty may not be punished twice, does not usually proceed against lay delinquents after the civil magistrate has sufficiently provided for the public good (can. 1933 § 3), and in general abstains from inflicting the penalty if the delinquent is punished or is foreseen to be punished by the civil authority (can. 2223 § 3, n. 2). In practice, therefore, the Church adheres to its own laws with regard also to the penalties inflicted by the State.
In crimes against the faith and the unity of the Church, given the disinterest of the State in today's regime of tolerance, the Church provides by its own laws alone.
II. IN THE JUDICIAL BODIES OF THE CHURCH
Under canon law, competence is determined on the basis of four fundamental criteria: functional, objective, subjective and territorial. These criteria interfere and combine with one another, so that, despite the delimitations of competence established by law, there may be a multiplicity of fora, equally competent in the same case. When by different titles many judges are equally competent, and the plaintiff may of himself approach all of them in order to bring the defendant before them, that judge or tribunal becomes exclusively competent before which the plaintiff in fact appears and which, after the libellus of accusation, first issued the summons, legitimately served on the defendant. By this act the judge approached prevents every other judge and, by preventing him, excludes him from the possibility of judging the case (can. 1568; cf. 2, 10, X, I, 29; 2, II, 5 in Clem.). But if one of the parties abandons the case, and later begins a new suit, the first judge is no longer competent, since it is a new litigation.
For the p. to be effective, the summons must be valid, in accordance with can. 1711 ff. Nevertheless contumacy does not annul the effect of the summons with regard to the p., unless the defendant is able to purge his contumacy in accordance with can. 1851.
In criminal cases too it is the summons that determines the ius praeventionis, so that, even while the inquiry is being conducted (can. 1939 ff.), the case may shift by effect of the p. from one judge to another. By analogy the criterion of the p. may also be applied in the case where the same case is pending in two distinct proceedings before the same judge. The purpose for which the legislator established the p. is ne bis de eadem re sit actio. This responds to an interest of public order, to avoid useless waste of energies, excessive burden on the judicial organs, and above all to prevent the same controversy from yielding several judgments, perhaps contrary to one another, with manifest discredit to the administration of justice.
Bibliography4 works
Pietro Palazzini