PROMOTORE DI GIUSTIZIA. – The promoter of justice is an official of the Tribunal who, under the direction of the Ordinary (or, in the tribunals of the Holy See, of the judges themselves who either presently or habitually exercise directive functions), prosecutes criminal actions and urges observance of the law in contentious cases in which the public good is at stake, except for those duties specifically assigned to the defender of the bond (cann. 1586, 1589; Normae of the Tribunal of the S. R. Rota, art. 24 § 1). The promoter of justice must be constituted in all diocesan tribunals (can. 1586) and in the tribunals of Religious, in which, however, membership in the Order or Congregation is required of the promoter of justice (can. 1589 § 2); and he is constituted on a permanent basis in the apostolic tribunals of the S. Romana Rota (Normae, chap. 2, art. 24 ff.) and of the Apostolic Signatura. In the latter tribunal, whereas previously the office was carried out by delegation by one of the voting prelates (cf. Appendix ad Regulas servandas in iudiciis apud Supr. Sign. Apost. Tribunal, art. 16), today it is, as stated, permanent. The office of promoter of justice also exists at the S. Congr. of the S. Office (until 1920 it was called “fiscal advocate”) and in the tribunals of the Vatican City State.
I. HISTORICAL NOTES
Historically, the first traces of this office are found in the so-called promotores episcopales, who appear here and there in the dioceses throughout the thirteenth century. It is difficult to establish whether Innocent III’s procedural reform, with the constitution of a promovens distinct from the judge in criminal proceedings (31, X, V, 3), preceded or followed the episcopal initiative. Initially a private figure, the promovens gradually acquired stability and a public character (26, X, V, 1), and took different names according to time and place (procurator curiae ad excessus corrigendos, promotor ad excessum, registrator). In Italy it came to be called procurator or promotor fiscalis, an appellation that remained in use until the Code (where “fisc” is understood to mean the totality of the goods and rights of ecclesiastical society). The establishment of the p. di g. became general in the seventeenth and eighteenth centuries, although no law required II. In the Roman Curia, where the office of the procuratores or advocati fiscales had already been reorganized by Leo X (constitution Sicut prudens, 3 January 1518), Paul III (constitution Ad onus, 4 July 1548), and Pius IV (constitution Cum ab ipso, 30 June 1562), Benedict XIII (12 June 1724) established a procurator general to promote appeals in criminal cases for all curiae that did not have their own procurator in Rome. The office of p. di g., however, had remained somewhat imprecise. Created for criminal cases, it was subsequently called upon to intervene also in certain contentious cases concerning the liberty of the Church, pious legacies, and so forth. A certain definition of its duties was provided by the instruction (art. 13) of the S. Congr. of Bishops and Regulars (11 June 1880): unicuique curiae opus est procuratore fiscali pro iustitiae et legis tutela.II. NATURE AND SCOPE OF THE OFFICE OF P. DI G. — The p. di g. is a figure parallel to that of the defender of the bond (v.); indeed, the two offices may be entrusted to the same person (can. 1588 § 1), except that the persons must be separated in the event of a conflict between the two offices, owing to opposing interests, in the same case. The difference, however, between the two offices lies in the fact that, whereas the defender of the bond must always, by virtue of his office, defend and uphold the existence of the matrimonial or ordination bond, the p. di g. is free in his conclusions, because certat pro rei veritate. A certain marked analogy is also found with the figure promoter of the faith (v.) in the handling of the causes of the Saints. In the civil procedural system, the figure approaching that of the p. di g. is the public prosecutor, who represents the interest of society, which seeks to be defended in observance of the law (Ital. Code of Civil Procedure, arts. 69-74). But the public prosecutor combines in himself the twofold character corresponding, in the canonical forum, to the defender of the bond and the p. di g.; moreover, he represents the executive power (which is inconceivable in the canonical system, where there is no true separation of powers: can. 335 § 1) and exercises jurisdiction in certain cases (which, notwithstanding certain now outdated controversies, is denied of the p. di g. in canon law). The p. di g. ecclesiastical office (v.) in the broad sense (can. 145 §§ 1-2), precisely because he possesses no jurisdiction whatsoever. Although he is attached to the tribunal, he does not, however, constitute the tribunal. Rather, he is assimilated to the parties, although he cannot strictly be called a party, because he appears in court not to defend a personal interest but a public one, and is clearly distinguished by the CIC from the parties (cf. cann. 1745, 1773, 1879, etc.). The Code itself, however, requires him to take the place of the parties when a party is absent or unable to act (cann. 1850 § 2, 1971 § 1, n. 2), and in criminal proceedings it calls upon him to act as plaintiff (can. 1934; cf. also can. 655 § 2 in causes for the dismissal of a professor from perpetual vows). Rather than directly caring for the public good, his task is to ensure that the public good is not neglected by the judge, to whom he nevertheless remains subject (cf. cann. 1586, 1954; Normae S. R. Rotae, art. 27 § 1, etc.).
His participation in judicial proceedings is at times prescribed by law, as in criminal cases (cann. 1934, 655 § 2) and in certain contentious cases; at times it is made dependent upon the Ordinary (can. 1586) or the judge (can. 1945; Normae S. R. Rotae, art. 27 § 1). In criminal cases, the p. di g. is the public prosecutor, to whom action (v.) is entrusted under the direction of the Ordinary (cann. 1934, 1950, 2223). In contentious cases, the intervention of the p. di g. is required in cases of nullity of marriage on grounds of impediments natura sua public (can. 1971 § 1, n. 2; V. PUBBLICITÀ); for the granting ex officio to minors, or to those assimilated by law to minors, of the restitutio in integrum (can. 1688 § 2); in cases concerning the title to a benefice when one of the litigants has died, except for the right of assignment by the Ordinary to the survivor in the event of free collation (can. 1734); in the event of an appeal for the acceptance of the libellus (can. 1709 § 3); when the granting legal aid (v.) or the reduction of expenses is at issue (can. 1915 § 2; Normae S. R. Rotae, art. 31); when the p. di g. has participated in a previous instance (ibid., art. 27 § 2); when the question is whether or not to admit documentary proceedings for casus exceptus in accordance with cann. 1990-92 (Instruction of the S. Congr. of the Sacraments, 15 Aug. 1936, art. 227 § 1; AAS, 28 [1936], p. 388). He must be heard in matters concerning suspicion (can. 1616), attempts at alteration (can. 1856 § 2), and the reform of interlocutory judgments before the definitive judgment (can. 1841); he must give his vote regarding the examination of new witnesses after the publication of the testimony (can. 1786), and regarding the appointment of experts in cases of public interest (can. 1793 § 2); he must receive a copy of the pleadings submitted, in order to examine them (can. 1863 § 2). When his presence is required, the proceedings are null if he is not summoned, or if, even without having been summoned, he does not in fact intervene (can. 1587), entirely as in the case of the defender of the bond (v.).
He may intervene, always for the protection of the public good, to request the sequestration of the things in dispute or an injunction exerciti iuris (can. 1672 § 3); to raise the defect of possession (can. 1696 § 2); to request the restitutio in integrum (can. 1688 § 2), or a change in the formulation of the doubt (can. 1729 § 4), or a supplemental oath (can. 1830 § 3), or incidental petitions (can. 1837). He may submit articles for the examination of witnesses or parties (can. 1745 § 1), propose new questions during an examination in progress (can. 1773 § 2), call witnesses (can. 1759 § 2), request a declaration of contumacy both of the defendant (can. 1841) and of the plaintiff (can. 1849), and request the continuation of the proceedings in the event of the plaintiff’s contumacy (can. 1850 § 2). He may be heard when the production of documents is ordered (can. 1824 § 1), and regarding the acceptance or rejection of incidental petitions or the manner in which they are to be decided (can. 1839). In matrimonial cases in which he is called upon to intervene, it is the p. di g. who receives the denunciation from the party or parties unable to bring an accusation, secretly interrogates the parties, advises the renewal of consent, and examines, together with the bishop, the basis of the denunciation (the cited Instruction of the S. Congr. of the Sacraments, arts. 37 § 4, 38 § 1, 41 § 3).
The means by which the p. di g. protects the public good are the action and the vote, that is, the procedural or substantive observations which he submits to the judge or judging panel (ibid., art. 30). When the p. di g. intervenes, all the acts of the proceedings must be submitted to him and he must be summoned to all of them; but he cannot demand, as the defender of the bond can (and must limit himself to requesting), that the acts suggested by him be carried out (can. 1969, n. 4). Nor is it he, but the accused, who must be heard last (can. 1984 § 1). If he is alone, he must himself take care of the preparation of the acts; but if he is associated with others, he may also allow the parties to perform certain acts, always reserving to himself the examination of those acts. The p. di g., like any plaintiff, may withdraw the accusation at any stage of the proceedings or waive an appeal; but not without the consent of the Ordinary in diocesan proceedings (can. 1950), or of the tribunal itself, as seems more probable and is followed in practice, if apostolic tribunals are involved. The p. di g. may be constituted, like the defender of the bond, for all cases universally, or for individual cases (can. 1588 § 2); he may therefore be permanent or appointed on a temporary basis. When he is appointed permanently for all cases, he does not cease from his office even during the vacancy of the diocese, nor may he be removed by the capitular vicar; upon the arrival of the new Ordinary, he must be confirmed. If, however, there is a just cause, the bishop may also remove him from office (can. 1590). The office of p. di g. is incompatible with the role of witness (can. 1757 § 3, n. 1), judge, notary, etc. Since it is an office, several persons may exercise it: in a single tribunal there may be several p. di g. of equal rank or subordinate (substitutes), while the unity of the office is always maintained.
III. THE P. DI G. IN THE APOSTOLIC TRIBUNALS, THE CONGREGATION OF THE HOLY OFFICE, AND THE VATICAN CITY STATE.