PROCESSO. – By p. in the broad sense is understood a body of norms regulating and governing any procedure directed toward the ascertainment and determination, or the realization, of a juridical situation or of a juridical act or transaction. Procedure, therefore, may be judicial or administrative, or even directed toward the formation of legislative norms; it may be solemn or summary, ordinary or exceptional, oral or written, predominantly oral or predominantly written, or essentially documentary, etc.
In the canonical sense, however, two fundamental types of p. must be distinguished: the judicial process, dealt with in cann. 1552–1916 and 1933–1998, and the administrative p.; strictly speaking, one cannot speak in canon law of a p., or more precisely of a procedure directed toward the drafting of legislative norms, also because the Supreme Legislator in the Church is, ex natura rei, legibus solutus.
SUMMARY:
I. Judicial p
II. Canonical judicial p
III. Special proceedings
IV. P. of Holy Orders. – V. P. super rato et non consummato. – VI. P. of personal separation. –VII. Pauline Privilege
VIII. P. of beatification and canonization. – IX. Canonical administrative p.I. JUDICIAL PROCEEDINGS
Judicial proceedings are the body of norms directed toward the practical realization of an action (v. AZIONE), that is, the body of formal norms through which a concrete legal judge (v.), namely, by an organ that, through its objective activity, substitutes itself for the activity of the private or public parties (v. PARTI); hence the definition in can. 1552 § 1: « Nomine iudicii ecclesiastici intelligitur controversiae in re de qua Ecclesia ius habet cognoscendi, coram tribunali ecclesiastico, legitima disceptatio et definitio ».1. Historical notes
Originally, canonical judicial proceedings derived from three sources or, more precisely, took their structure from three bodies of norms: the Roman, which was always predominant; the Germanic; and the specifically canonical element, which arose from the very connective tissue of ecclesiastical perfect society, as well as from the tradition and mentality of Christian philosophical thought. As the centuries and institutions evolved, this third element underwent ever broader development; thus, from the celebrated constitution of Clement V of 1306 (v. CORPUS IURIS CANONICI), which instituted summary proceedings, one arrives at the Tridentine reforms, the jurisprudence of the S. Romana Rota (especially important in the seventeenth century, V. TRIBUNALI ECCLESIASTICI. SEDE. III), the procedural institutions of Benedict XIV (1741–48), and finally the instructions of the S. Congregation of 1840 and 1883 and the Piana Reform of 1908.The current Book IV of the CIC, in the final analysis, does not differ, as regards the origin of its institutions, from the traditional Roman, Germanic, and specifically canonical sources, although it moderately incorporates certain elements of the laws currently in force in the States and certain principles of modern procedural doctrine.
2. The necessity of judicial proceedings
The necessity of judicial proceedings normally depends upon the conflict or disagreement between the parties, so that, precisely in view of the conflict, the intervention of the judge’s substitutive activity becomes necessary. Less frequently, especially in contentiosis, it happens that a given juridical end cannot be achieved through the agreement or acquiescence of the parties, but that, notwithstanding their agreement, a formal trial must be instituted. Indeed, whereas in the positive law of the States there are categories in which the intervention of the judicial authority is necessary, precisely because a given effect can be achieved only through a regular trial (thus, for example, in Italian law, the determination of an offense and the application of penalties, actions concerning the status of persons, etc.), in canon law it may be doubted that an analogous principle exists, since in canon law penalties are imposed (and in practice normally so) also by administrative means, and it is not excluded that, saltem iure extraordinario, that is, following a pontifical Commission, the same disputes concerning the status of persons (and especially matrimonial disputes) may be resolved within the sphere of administrative procedure.II. CANONICAL JUDICIAL P
3. Characteristics
It must be acknowledged: a) that canonical judicial p. is predominantly written. Indeed, the initiating act of the proceedings (the introductory petition of the case: can. 1706 ff.) must be in written form; likewise the summons (can. 1711 ff.), the joinder of issue (can. 1726 ff.), the various applications addressed to the judge in the course of the proceedings, and particularly those directed toward raising an incidental question (can. 1837 ff.), the parties’ pleadings (can. 1863), the judge’s orders (can. 1873), and the remedies of appeal (can. 1878 ff.), while a written record must be drawn up of every oral declaration, and especially of every item of evidence. Nevertheless, orality cannot be said to be entirely excluded. By way of exception, even the initiating act of the proceedings may be submitted oretenus (can. 1707), at the stage of agreeing upon or attempting to agree upon the doubt (Iitis contestatio); oral discussions between the parties are not uncommon, especially before the Tribunal of the S. Romana Rota; once the written pleadings have been submitted, oral discussion, albeit moderated—and ad aliquid illustrandum (can. 1866 § 2), and before the Tribunal of the S. Romana Rota rather on questions of fact than of law—may be permitted; the publication of the judgment itself may be carried out by summoning the parties ad audiendam sententiae lectionem solemniter factam a iudice pro Tribunali sedente (can. 1877).b) That canonical judicial p. is normally secret with respect to third parties; publication constitutes the rule between the parties, in the sense that the parties are entitled to know all the acts, documents, and evidence in the case, subject, however, to the exception established by can. 1623 § 3, according to which: « Imo quoties causae vel probationum natura talis sit ut ex actorum vel probationum exulgatione aliorum fama pericitetur, vel praebeatur causa dissidiis, aut scandalum aliudve id genus incommodum oriatur, iudex poterit testes, peritos, partes earumque advocatos vel procuratores iureiurando adstringere ad secretum servandum ». In substance, the judge may not take account of evidence that has not been communicated to the parties’ advocates, at least under the obligation of the oath de secreto servando.
c) That in canonical judicial p., the inquisitorial principle is realized, in the sense that many actions may, and sometimes must, be undertaken ex officio by the judge (thus, for example, the judge may ex officio initiate the consideration of an incidental question [can. 1837]); retractare ex officio a judgment affected by nullity (can. 1897 § 2); correct or revoke ex se, before the merits of the case have been decided, an interlocutory judgment (can. 1841); order ex officio the intervention of a third party (can. 1853); declare ex officio the close of the inquiry—the so-called conclusum in causa (can. 1860 § 2)—; while, particularly in the field of evidence, the ecclesiastical judge possesses broad inquisitorial powers, both in examining the parties, and in summoning ex officio witnesses not called by the parties (can. 1759), and in admitting and appointing experts (can. 1792), and in matters of judicial inspection and examination (can. 1806), and in matters of the oath, not only the suppletory oath (can. 1829), but also the decisory oath (v. GIURAMENTO).
Nevertheless, although the judge’s initiative in ecclesiastical disputes is predominant, both in abstract theory and especially in practice, since today 99% of proceedings concern matrimonial matters, that is, disputes de bono publico or at least de salute animarum (that is, cases in which the ecclesiastical positive law in force permits broader powers of initiative ex officio), activities reserved exclusively, or at least predominantly, to the initiative of the parties are not lacking, especially in cases of purely private interest.
Above all, however, the fundamental principle applies that the judge may never ex officio give the initial impetus to a case, hence the rule nemo iudex sine parte, although this party may sometimes be a public party, Promoter of Justice (v.). There also exists, however, in matrimonial cases, a practice or at least a prevailing tendency according to which it does not appear appropriate for the judge, animated by excessive zeal, to compel the parties (when neither of them shows diligence) to pursue, investigate, and argue the case. The excessive zeal of certain lower judges, directed toward compelling the parties, once the case has been initiated or even investigated, either to argue it or to renounce it, may perhaps find no justification in the Code, but above all it finds no reasons of practical expediency in its favor.
If the parties intend to suspend the consideration of a matrimonial case, there is no reason to urge it forward. The judge should await the expiration of the peremptory period and, once this has occurred, declare the proceedings abandoned (cann. 1736–1739); this is the most that he can and must do, without failing in his duty and, above all, without contravening principles of practical expediency and propriety.
d) As a general rule, canonical p. is strewn with preclusive periods: a) preclusions for bringing claims and exceptions (can. 1628 ff.); b) preclusion concerning alteration of the very formula of the joinder of issue (can. 1731, n. 1); c) preclusions concerning evidence for the contumacious party (can. 1842 ff.) and for the party intervening in the case (can. 1852 § 3); d) preclusions concerning the admission of new evidence after publication of the testimony and of the conclusum in causa (cann. 1786 and 1861 § 1), and at the appellate stage (can. 1891 § 1). Nevertheless, the theoretical rigor of these provisions is practically tempered both by the legislative norm that allows the judge, from case to case, to grant an exception for just, grave, or most grave reasons, and especially in practice (and it ought to be) as a consequence of a liberal application of these norms, particularly in matrimonial cases (to which, as already stated, 99% of ecclesiastical cases now belong). One must also consider that in so delicate a matter obstacles should not be placed, at any stage or level of the proceedings, in the way of the search for truth. The periods for exercising remedies of appeal are, as is obvious, strictly preclusive (cann. 1881, 1883, 1893, 1895, 1905, 1847).
It should also be considered that the strictness of some of these peremptory periods is tempered: a) by the length—at times, in truth, excessive—of some of them, such as those for a complaint of incurable nullity (30 years), and for the restitutio in integrum, as well as for raising the evidenter neglectum legis praescriptum (4 years). b) In matters de statu personarum (practically, matrimonial matters), there are no periods, so that an appeal (even if at times called retractatio causae), until there exists a double conforming decision, is always admissible; likewise, according to a certain doctrine, also accepted by Rotal jurisprudence, the appeal of the Defender of the Bond, pro sua conscientia (can. 1987), is itself always admissible; while the parties’ right to request, even after two adverse judgments, a new hearing, on the basis of new and serious arguments and documents, is not subject to peremptory periods (can. 1989).
e) In the canonical law currently in force, the principle of indirect communication prevails, inasmuch as the parties do not exchange or directly notify one another of their applications, requests, or even grounds of appeal, but do so indirectly through the judge; and the proceedings themselves are not initiated by a summons served from one party upon the other, but by a petition submitted to the judge (can. 1706), which the judge must admit (can. 1709); hence, once it has been admitted, the summons is ordered by the judge himself (can. 1712).
4. Principal sources of canonical judicial proceedings
As has already been mentioned, the principal source of the current canonical judicial proceedings derives from the canons extending from 1552 to 1916 and from 1933 to 1998, which therefore comprise the first 24 titles of Book IV, with the following exceptions: a) Title xvii, which deals with the execution of sentences, and which in canon law must be recognized as a merely administrative activity; b) Title xviii, divided into two chapters: the first of which deals with an institution of substantive nature, namely, settlement (v.), and the second with submission to arbitration, which is indeed a procedural institution, but which is regulated by a norm—too brief and hasty, in truth—such as that of can. 1930, by reference to, that is, by canonizing, the norms of the respective civil laws of the locus in quo compromissum initur. This fundamental body of procedural laws, which could quite properly be called the Church’s current common procedural law, has the undoubted technical merit of regulating in a single body a complex subject which, before the Pio-Benedictine codification, was contained in a welter of sources differing in time, subject matter, and structure. Before the CIC, in fact, the proceduralist had to take into account: a) various titles of the Decretals of Gregory IX; b) the celebrated Clementines Dispendiosa and Soepe, which instituted summary proceedings; c) the rules of the Chancery; d) certain provisions of the Council of Trent; e) the celebrated constitutions Dei miseratione and Si datam of Benedict XIV for proceedings concerning the nullity of marriage and of Holy Orders; f) numerous other Papal Constitutions; g) various instructions of the Sacred Roman Congregations (S. Congr. Ep. et Reg. 26 March 1886; Council 22 August 1940; Holy Office 20 June 1883, etc.); h) and finally the procedural norms of the Sapienti Concilio (29 June 1908), of the attached Leges propriae of the S. Rota and of the Apostolic Signature, and of the subsequent Regulae servandae (4 August 1910; 6 March 1912; 3 November 1915).The current common procedural law is, moreover, supplemented and at times derogated from: a) by the norms in force at the Tribunal of the S. Romana Rota (29 June 1934), together with the related additions consisting of normative measures, resolutions approved by the Plenary Assembly of the Auditors and at times confirmed by the Supreme Pontiff, etc. (v. G. Pinna, Praxis indicialis canonica, Rome 1952). It does not seem doubtful that the special norms of the S. Romana Rota, even if they may at times be considered contrary to the norms of the common law, prevail over the latter; b) by the norms in force at the Tribunal of the Apostolic Signature, which are still those of 29 June 1908 and 6 March 1912, updated in certain details not so much by formal measures as by constant practice; c) by the norms issued by the S. Congregation of the Sacraments for cases of nullity of marriage, dated 24 July 1936. The validity of some—indeed, only a few—of these norms, which appear to conflict with the common law, is disputed. The more authoritative doctrine, which also has certain precedents in its favor drawn from rotal jurisprudence, tends rather to regard as ineffective the norm of the instruction which, hypothetically, should prove contrary to the law of the Code. Special norms for particular procedural institutions are contained in norms issued by the S. Congregation of the Holy Office and by the S. Congregation of the Sacraments.
It should also be noted that a complete procedural regulation is now in force for the faithful of the Eastern rite, constituted by the motu proprio of 6 January 1950 (AAS. 42 [1950], pp. 5-120). This regulation, which ultimately constitutes Book IV of the future CIC pro Ecclesia Orientali, appears considerably more valuable than Book IV of the CIC pro Ecclesia Latina, since it was elaborated with due consideration for the shortcomings of more than thirty years of practice and for the criticisms that doctrine had identified in subiecta materia.
5. General structure of common judicial proceedings
It can be discerned through reference to specific entries in this Encyclopedia: a) for the judge and his competence, see the entries: COMPETENZA; GIUDICE ECCLESIASTICO; PRESIDENTE DI TRIBUNALE; TRIBUNALI ECCLESIASTICI; TRIBUNALI DELLA S. SEDE. b) For the judge’s assistants, V. DIFENSORE DEL VINCOLO; NOTATO; PERITO; PROMOTORE DI GIUSTIZIA. c) For the concept of the parties and their advocates, V. ATTORE; AVVOCATO; CAPACITÀ; REO. d) For the introduction and commencement of the case, V. CONTESTAZIONE DELLA LITE; DENUNCIA; ISTANZA; LIBELLO. e) For evidence, V. CONFESSIONE (mezzo di prova); DOCUMENTO, V. Il d. nel diritto canonico; GIURAMENTO; PERITO; PRESUNZIONI; TESTIMONI. f) For the effects of the pendency of the suit, V. LITE PENDENTE; for the conclusion of the case, V. CONCLUSIO IN CAUSA. h) For the extinction of an instance, V. DECADENZA; ISTANZA; PERENZIONE. i) For id quod in iudicio deducitur, V. AZIONE; DELITTO; ECCEZIONE. l) For the concept of res iudicata, of judgment, and of the corresponding means of challenging a judgment, V. APPELLO; DECRETO; QUERELA DI NULLITÀ; RESTITUZIONE IN INTEGRUM; SENTENZA; OPPOSIZIONE DEL TERZO.Judicial proceedings may be instituted: a) whenever the subject matter in dispute is judicial in nature, and it is judicial in nature whenever the violation of a subjective right or the ascertainment of a juridical fact is in dispute, provided that the action itself is not directed toward censuring or annulling an administrative measure (can. 1601). This is truly one of the most serious and obscure points in the current canonical procedural law. While some would wish—and perhaps rightly so—to admit a judicial action whenever a subjective right exists, even if violated by an administrative act (naturally excepting cases in which the canonical norm, expressly denying a judicial action, attenuates the subjective right into a legitimate interest), others, supported by a predominant tendency in rotal jurisprudence and by the constant practice of the Sacred Congregations, understand the norm of can. 1601 in an extremely strict sense: namely, that the existence of an administrative act genuinely precludes an action directly aimed at restoring the violated right, even for the limited purpose of obtaining damages. b) Whenever the judicial route has not been precluded by an appeal that one party has made to a Sacred Congregation, without the other party having expressly raised an objection in this regard: this is the norm contained in the provision of no. 10, art. 11, chap. 3 of the Normae peculiares of the Sapienti Consilio. By reason of this phenomenon of administrative acquisition, therefore, any dispute, even if judicial in character by its nature, may be excluded from strictly judicial proceedings and remain definitively committed to the administrative route.
III. SPECIAL PROCEEDINGS
Canonical ordinary process, as has already been mentioned, is governed by the aforementioned titles of Book IV of the CIC. This is the ordinary process, which nevertheless comprises not only the pure and simple procedure relating to the initiation, development, and conclusion of a trial, including proceedings for appeal; it also regulates the prerequisites of the action and of the process, and even the configuration of certain special actions, such as the rei sequestratio et inibitio exercitii iuris (cann. 1672–75, V. SEQUESTRO; new construction and threatened damage [1676–78]), nullity (v.) of acts (1679–83); actions for rescission and restitutio in integrum (v. AZIONE and cann. 1684–89); and possessory remedies (cann. 1693–1700). It is not, in substance, a book of merely formal content, since it regulates certain institutions pertaining rather to substantive law than to procedural law.1. Criminal process. — This body of norms, which has rightly been called canonical ordinary process, is applicable to the generality of contentious processes, that is, processes concerning civil rather than criminal matters; this is the general principle. However, the criminal trial dealt with in cann. 1933–59, except for denunciation (v.), the preliminary investigation (inquisitio, V. INQUISIZIONE GIUDIZIALE), the correction (v.) of the delinquent—which is a means by which criminal proceedings may be avoided if the accused immediately confesses and the situation contemplated in cann. 1948–49 does not arise—and the accusation by the Promoter of Justice—which, it should be noted, is not obligatory, as is the action of the Public Prosecutor under secular codes of criminal procedure, but depends upon the precept of the Ordinary, can. 1954—is, as we were saying, regulated in its structure by the same norms governing contentious process. Thus, whereas, especially in the States of continental Europe, one is accustomed to distinguishing a criminal process which, owing to its characteristics of orality, publicity, procedural concentration, and so forth, differs greatly from contentious process, in canon law the structure of the two processes is essentially identical. In it, that is, servatis servandis, there occurs the same amalgamation of the two procedures which, in a certain sense, is found in English law, except, naturally, that in English law the principles of orality and publicity prevail, whereas in canon law the principles of writing and secrecy prevail.
2. Summary process. — Canonical process, whether contentious or criminal, as it emerges from the body of canons governing it, is undoubtedly a formal and cumbersome procedure. The judge is indeed empowered to make it more expeditious by setting short time limits, closing the investigation at a certain point by declaring himself sufficiently informed of the truth of the matter, and deferring the determination of incidental questions to the merits, since their separate treatment would entail a considerable loss of time. Apart from these powers and faculties of the judge, however, which he cannot be compelled to exercise, current canon law contains no summary or brief process as opposed to ordinary or solemn process. The new procedural order for the faithful of the Eastern rites (published on 6 Jan. 1950, arts. 1–576; AAS, 42 [1950], pp. 5–120), on the other hand, recognizes proceedings before a single judge, which may properly be called a summary process (cann. 452–67). The only form of summary process known to the current Code of Canon Law is a special type of matrimonial process, the documentary matrimonial process for the so-called excepted cases (cann. 1990–92).
3. Matrimonial process. — It should first be stated that matrimonial process too is, in substance, governed by the norms of ordinary contentious process. These norms are supplemented by cann. 1960–1992, which deal with the competent forum for matrimonial causes (cann. 1960–65); the constitution of the Tribunal, which must always be collegiate (cann. 1966–69); the rights and duties of the Defender of the Bond ([v.]; cann. 1968–69); the right to accuse the nullity of marriage (cann. 1970–73); witnesses (v.), and especially the so-called septimae manus testimony in cases of impotence and non-consummation (cann. 1974–75); physical examination and expert examinations in cases of impotence and non-consummation and of defective consent due to amenza (can. 1976–82); publication of the proceedings, conclusion of the case, and judgment (cann. 1983–85); appeals against judgments issued in subiecta materia (cann. 1986–89); and finally the process for excepted cases (cann. 1990–92).
The serious questions that arose concerning the capacity of the parties to accuse the nullity of the marriage they had contracted are well known. After much doctrinal and jurisprudential uncertainty, the clear provisions issued by the Commission for the Authentic Interpretation of the CIC established the principle that only the spouse who was the direct and culpable cause of the nullity or impediment may be excluded from the right of accusation (Comm. interpr. CIC, 12 March 1929; 17 Feb. 1930; 17 July 1933; 22 March 1939; 27 July 1942; 6 Dec. 1943; 3 May 1945; 4 Jan. 1946). Further controversies were occasioned by can. 1872, when it was a question of accusing the nullity of a marriage, for certain patrimonial effects, after the death of one or both spouses. The broad possibility of requesting a new instance of trial, even after two concordant judgments, on the basis of new arguments and documents (res nova et gravis, can. 1989, coll. 1993), is likewise well known. It is also well known that, since judgments de re matrimoniali never pass into rem iudicatam, it is possible, even many years after publication of the first adverse judgment, freely to conduct a second degree of trial. From this characteristic, proper to matrimonial causes, that they never pass in rem iudicatam, profound modifications to the structure of ordinary contentious process derive.
Peremptory time limits, forfeitures, and preclusions applicable to ordinary proceedings have no place in a matrimonial process, in which the search for truth takes precedence even over the requirement of a res iudicata.
Special mention should be made of the matrimonial process for excepted cases, because, as has been indicated, it represents an example of an abbreviated or summary judicial process under the current canonical procedural order.
In the cases exhaustively specified in can. 1990, where the existence of the impediment is established by a certain and authentic document, not subject to contradiction or exception, and it is established with equal certainty that no dispensation was granted, the Ordinary, after summoning the parties and with the intervention of the Defender of the Bond, may, without observing the other formalities of the process, issue a declaratory judgment of nullity. The formation of a collegiate Tribunal is therefore not required, and the Defender of the Bond is not obliged to appeal this declaratory judgment of nullity, as he is in ordinary cases. Pro sua conscientia, however, he may appeal, and the appellate judge will either confirm the judgment of the Ordinary at first instance or remit the acts to the Tribunal of first instance so that it may proceed according to the ordinary norms (cann. 1991–1992). In fact, the authors debated the nature of this process, some considering it administrative rather than judicial. It is no longer doubted—also in view of the provision of art. 227 of the Norms of the S. Congr. of the Sacraments for matrimonial processes—Ordinarius iudicen agens—that the procedure of the casus exceptus is a genuine judicial procedure, though summary, abbreviated, and predominantly documentary.
IV. P. DI S. ORDINAZIONE (v. ORDINE E ORDINAZIONE, NULLITÀ di). They are sometimes handled judicially, but more frequently through administrative channels; in any case, it falls to the Congregation of the Holy Office or of the Sacraments—that is, to an administrative body—to determine which of the two procedures is to be followed.
V. PROCESS FOR RATUM ET NON CONSUMMATUM
This is an essentially administrative procedure, regulated in part by canons 1962–66 and following, 1973–74 and following, but above all by the instruction of 7 May 1923 of the S. Congr. of the Sacraments. It should nevertheless be noted that before the Tribunal of the S. Roman Rota, the determination of the non-consummation of the marriage and of the just causes for the dispensation may be discussed through judicial procedure, when the doubt an sit consulendum Sanctissimo Duo etc. has, with the prior intervention of a Pontifical Commission, been agreed upon subordinately to the doubt de nullitate matrimonio (v. MATRIMONIO, VII. M. RATO NON CONSUMMATO).VI. PROCESS OF PERSONAL SEPARATION
While perpetual separation on the grounds of adultery must be pronounced following judicial proceedings, temporary separation, sive ad definitum sive ad indefinitum tempus, may be decreed by the Ordinary, even through an administrative procedure (can. 1941; V. CONIUGI, II. Separazione personale dei c.).VII. PAULINE PRIVILEGE
Pauline privilege (v.), and the special cases referred to in can. 1125, are essentially administrative proceedings.VIII. PROCESS OF BEATIFICATION AND CANONIZATION
The process of beatification and canonization (v. BEATIFICAZIONE; CANONIZZAZIONE; RITO; PERQUISIZIONE, II. P. degli scritti; PROMOTORE DELLA FEDEI) is an administrative process.IX. CANONICAL ADMINISTRATIVE PROCEDURE
Civil-law doctrine recognizes the category of so-called judicial remedies before administrative bodies exercising a special judicial activity (e.g., Council of State, Court of Auditors, etc.). No such category exists in canon law. Civil-law doctrine also recognizes the category of so-called administrative appeals, such as hierarchical appeal, remonstrance, and extraordinary appeal to the Sovereign. Doctrine nevertheless points out that these remedies, although administrative and not judicial in character, are juridical in nature, since the right of a private individual to lodge an appeal corresponds to an obligation on the part of the public administration to rule on the appeal, an obligation sometimes sanctioned by judicial means.Now, in canon law, although there are appeals that may be compared with hierarchical appeal in state administrative law (v. RICORSO), insofar as they are founded on the hierarchical order (appeal from the decrees of the Ordinary to the hierarchical Superior, exceptionally the archbishop, ordinarily the Holy See and, on its behalf, a Sacred Congregation); although the possibility of remonstrance exists (that is, of appealing again to the same Superior so that, being better informed, he may reconsider the matter); although the extraordinary appeal to the Sovereign exists and is widely applied (so that at any stage of the proceedings and against any administrative [and even judicial] measure the faithful are permitted to appeal directly to the Holy Father; cf. can. 1569 § 2), it cannot nevertheless be said that these remedies always have a juridical nature (except, that is, in certain procedures specifically determined), precisely because there is no obligation in strict justice on the part of the Superior (already approached) to reconsider the matter on the basis of new information, and still less is there an obligation in strict justice, which could always be pursued in their external forum, on the part of the Sacred Congregations or the Holy Father to examine the appeals addressed to them; and naturally there are no judicial sanctions for such obligations. There therefore exists in canon law an administrative procedure which might be called one of common law (not juridical in character, because a genuine obligation of the administrative body to rule on the appeal is lacking), but which is clothed in forms and also in certain safeguards that practice, more than written law, has helped to establish.
The initiating act of this p. is a written petition; the party against whom the petition is directed is informed by the petition itself, which indeed is ordinarily communicated or served upon that party in its entirety. The submissions and counter-submissions of the parties are, in general, made known to the parties themselves; the production of documents and extrajudicial expert opinions is permitted; documents and acts produced by one party are ordinarily made known to the other; testimonial evidence and on-site investigations, especially when the procedure takes place before a Roman Congregation, constitute genuine exceptions. Ordinarily, statements by witnesses are submitted with signatures authenticated by a competent notary. Only in very rare cases does the Congregation conduct direct investigations, sending a visitor to the place concerned. As a rule, it requests from the Ordinary pro informatione and a votum, but the Ordinary’s vote and information remain secret from the parties. The measure admitting or rejecting the appeal is not ordinarily reasoned, although it is the fruit of laborious study and careful deliberation. The time limit for lodging an appeal is not strict; it is held, however, that when the appeal is lodged within ten days of notification of the measure, it has, in certain matters (such as, for example, temporary separation of spouses), suspensive effect. And since in the Roman Congregations, as is well known, there exist the Congresso and the cardinals’ Plenaria, the interested party may indeed request that a decision of the Congresso be reconsidered by the Plenaria, but there is no duty on the part of the Congregation to grant this further petition; indeed, granting it is always left to the prudent discretion of the Prefect or to the superior intervention of the Holy Father. There is no obligation to make use of the services of an advocate or procurator; before some administrative authorities, the intervention of an advocate or procurator is not welcomed, and is even prohibited; before others, on the contrary, it is admitted with greater liberality.
These, then, are the general characteristics of administrative p.; but the CIC regulates certain particular forms of administrative procedure, namely those contained in part 3 of Book IV. Now, if not all these procedures, at least the most important of them, truly have a juridical character, insofar as they impose genuine obligations on the public administration and guarantee specific procedural rights to the interested parties. These include the procedure for the removal of irremovable pastors (tit. XXVII) and of removable pastors (tit. XXXVIII); the transfer of removable and irremovable pastors (tit. XXIX; V. AMOVIBILITÀ; AMOZIONE; INAMOVIBILITÀ); the procedure against clerics who do not observe the obligation of residence (v. tit. XXX), or who are suspected of concubinage (tit. XXXI, V. CONCUBINATO, IV. Il c. nel diritto canonico e civile italiano); or against a negligent pastor (tit. XXXII, V. NEGLIGENZA; PARROCO). Common characteristics of these procedures are the obligation to state the charges, the interested party’s opportunity to adduce evidence, grounds of justification, or excuses in his favor, and above all the institution of the intervention, albeit in an advisory capacity, of two synodal examiners (v.) or of two consulting pastors, so that before issuing a given measure the Ordinary must hear their opinion; above all, there is the right to appeal to the Holy See, coupled with the obligation of the Ordinary not to confer permanently, pendente recursa, upon another person the benefice or parish from which the appellant has been deprived. For the procedure of removal of an irremovable pastor, V. RIMOZIONE.
Another form of administrative procedure is the declaration or imposition of a penalty per modum praecepti under can. 2225, in relation to which criminal judicial procedure has, in practice, become an extremely rare exception; and suspension ex informata conscientia (v. SOSPENSIONE).