PROMOTER OF JUSTICE. - The promotor of justice (p. di g.) is a minister of the Tribunal who, under the guidance of the Ordinary (or, in the tribunals of the Holy See, of the judges themselves who actually or habitually have directive functions), prosecutes the criminal action and urges observance of the law in contentious cases in which the public good is at stake, except for those duties that are assigned specifically to the defender of the bond (cann. 1586, 1589; Normae of the Tribunal of the Sacred Roman Rota, art. 24 § 1). The promotor of justice must be appointed in all diocesan tribunals (can. 1586) and before the tribunals of Religious, in which, however, membership in the Order or Congregation is required of the promotor of justice (can. 1589 § 2); and he is appointed on a stable basis in the apostolic tribunals of the Sacred Roman Rota (Normae, ch. 2, art. 24 ff.) and of the Apostolic Signatura. In this last tribunal, whereas previously the office was exercised by deputation by one of the voting prelates (cf. Appendix ad Regulas servandas in iudiciis apud Supr. Sign. Apost. Tribunal, art. 16), today it is, as has been said, stable. There also exists the office of promotor of justice at the Supreme Congregation of the Holy Office (until 1920 it was called "fiscal advocate") and in the tribunals of the State of Vatican City.
I. HISTORICAL NOTES
Historically, the first traces of this office are encountered in the so-called promotores episcopales, which appear here and there in dioceses throughout the 13th century. It is difficult to establish whether the procedural reform of Innocent III, with the establishment of a promovente distinct from the judge in criminal proceedings (31, X, V, 3), preceded or followed the episcopal initiative. A private figure at the outset, the promovente gradually acquires stability and a public character (26, X, V, 1) and takes different names according to times and places (procurator curiae ad excessus corrigendos, promotor ad excessum, registrator). In Italy it takes the name procurator or promotor fiscalis, an appellation that would remain until the Code (by "fisc" being understood here the entirety of the things and rights of ecclesiastical society). The establishment of the p. di g. becomes general in the 17th-18th centuries, although a law imposing it was lacking. In the Roman Curia, where the office of the procuratores or advocati fiscales had already been reorganized by Leo X (const. Sicut prudens, 3 Jan. 1518), Paul III (const. Ad onus, 4 July 1548), and Pius IV (const. Cum ab ipso, 30 June 1562), there came about, with Benedict XIII (12 June 1724), the establishment of a procurator general to promote appeal in criminal cases for all curias that did not have their own procurator in Rome. The office of p. di g. had, however, remained somewhat imprecise. Born for criminal cases, it had then been called upon to intervene also in certain contentious cases concerning the liberty of the Church, pious legacies, etc. A certain determination of its tasks came about with 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 PROMOTER OF JUSTICE
The promotor of justice is a figure parallel to that of the defender of the bond (v.); indeed the two offices can be combined in the same person (can. 1588 § 1), save for the splitting of the person in the case of a conflict between the two offices, on account of conflicting interests, in the same case. The difference, however, between the two offices lies in the fact that, while the defender of the bond must always by virtue of his office defend and uphold the existence of the marriage bond or of ordination, the promotor of justice is free in his conclusions, because certat pro rei veritate. A certain marked analogy also exists with the figure of the promotor of the faith (v.) in the handling of the causes of Saints. In the civil procedural system, the figure of the public prosecutor comes close to the promotor of justice, representing the interest of society, which wishes to be defended in respect for the law (Italian Code of Civil Procedure, arts. 69-74). But the public prosecutor bears in himself the twofold character corresponding in the canonical forum to the defender of the bond and the promotor of justice; moreover, he represents the executive power (which is inconceivable in the canonical system, where there is no true division of powers: can. 335 § 1) and exercises jurisdiction in certain cases (which, despite certain now outdated controversies, is denied for the promotor of justice in canon law). The promotor of justice is an ecclesiastical office (v.) in the broad sense (can. 145 §§ 1-2), precisely because of the absence of any jurisdiction. Although he sits at 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 does not appear in judgment to defend a personal interest, but a public one, and by the CIC he is clearly distinguished from the parties (cf. cann. 1745, 1773, 1879 etc.). The Code itself, however, places him under the necessity of substituting for the parties, should a party be lacking or unable to act (cann. 1850 § 2, 1971 § 1, n. 2), and in the criminal process it calls him to play the part of plaintiff (can. 1934; cf. also can. 655 § 2 in cases of dismissal of a professor from perpetual vows). Rather than directly attending to the public good, his task is to press so that the public good is not neglected by the judge, to whom, however, he remains subject (cf. cann. 1586, 1954; Normae S. R. Rotae, art. 27 § 1 etc.).
His participation in the judicial debate is at times defined by law, as in criminal cases (cann. 1934, 655 § 2) and in certain contentious cases; at times it is made to depend on the Ordinary (can. 1586) or on the judge (can. 1945; Normae S. R. Rotae, art. 27 § 1). In criminal cases the promotor of justice is the public accuser, to whom the exercise of the criminal action (v.) is entrusted under the guidance of the Ordinary (cann. 1934, 1950, 2223). In contentious cases the intervention of the promotor of justice is required in cases of nullity of marriage on account of impediments public natura sua (can. 1971 § 1, n. 2; v. PUBLIC); for the granting ex officio to minors or to those equated by law to minors of the restitutio in integrum (can. 1688 § 2); in cases concerning the title to a benefice in the event of the death of one of the litigants, save the right of assignment by the Ordinary to the survivor, in the hypothesis of free collation (can. 1734); in the case of recourse for the acceptance of the libellus (can. 1709 § 3); when it is a question of the granting or revocation of free legal aid (v.) or of the reduction of expenses (can. 1915 § 2; Normae S. R. Rotae, art. 31); when the promotor of justice has participated in a previous instance (ibid., art. 27 § 2); when it is a question of admitting or not the documentary process for a 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 questions of suspicion (can. 1616), of attempted crimes (can. 1856 § 2), for reforming interlocutory sentences before the definitive one (can. 1841); he must give his vote for the interrogation of new witnesses, after the publication of the testimonies (can. 1786), and for the appointment of experts in cases of public interest (can. 1793 § 2); he must have a copy of the defenses presented in order to examine them (can. 1863 § 2). When his presence is required, the acts are null if he is not cited, or if, even though not cited, he does not in fact intervene (can. 1587), entirely as for 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 the inhibition exercitii iuris (can. 1672 § 3); to oppose the defect of possession (can. 1696 § 2); to request the restitutio in integrum (can. 1688 § 2), or the modification of the formula of the doubt (can. 1729 § 4), or the suppletory oath (can. 1830 § 3) or incidental petitions (can. 1837). He may submit articles for the interrogations of witnesses or of the parties (can. 1745 § 1), propose new questions during the interrogation in progress (can. 1773 § 2), induce witnesses (can. 1759 § 2), request the declaration of contumacy both of the accused (can. 1841) and of the plaintiff (can. 1849); request the continuation of the process in the event of the contumacy of the plaintiff (can. 1850 § 2). He may be heard for decreeing the production of documents (can. 1824 § 1), for the acceptance or rejection of incidental petitions or for the manner of deciding them (can. 1839). In matrimonial cases, in which he is called to intervene, it is the promotor of justice who receives the denunciation of the party or parties unable to accuse, who secretly interrogates the parties, who advises the renewal of consent and who examines, together with the bishop, the foundation of the denunciation (Instr. cit. S. Congr. of the Sacraments, arts. 37 § 4, 38 § 1, 41 § 3).
The means by which the promotor of justice protects the public good are the action and the vote, that is, the observations of procedure or of merit that he submits to the judge or judging college (ibid., art. 30). When the promotor of justice intervenes, all the acts of the process must be submitted to him and he must be cited for all of them, but he cannot require, 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); just as it is not he, but the accused, who must be heard last (can. 1984 § 1). If he is alone, he must himself attend to the drawing up of the acts, but if he is associated with others, he may also leave it to the parties to perform certain acts, always reserving on his part the examination of them. The promotor of justice, like any plaintiff, may withdraw from the accusation at any stage of the process or renounce the appeal; but not without the consent of the Ordinary in diocesan processes (can. 1950) or of the Tribunal itself, as appears more probable and is practiced in practice, if it is a question of apostolic tribunals. The promotor of justice may be appointed, like the defender of the bond, for the whole range of cases, or for individual cases (can. 1588 § 2); therefore he may be permanent or appointed in a transitory form. When he is elected for all cases, in a permanent manner, he does not cease from his office, not even during the vacancy of the diocese, nor can he be removed by the capitular vicar: on the arrival of the new Ordinary, he must be confirmed. If, however, there is just cause, the bishop may also remove him from office (can. 1590). The office of promotor of justice is incompatible with the role of witness (can. 1757 § 3, n. 1), of judge, of notary etc. Being an office, there may be several persons who carry it out: in a single tribunal there may be several promotors of justice of equal rank or subordinate (substitutes), always save the unity of the office.
III. THE PROMOTOR OF JUSTICE IN THE APOSTOLIC TRIBUNALS, THE CONGREGATION OF THE HOLY OFFICE AND THE VATICAN CITY STATE
In the Tribunals of the Holy See and at the Sacred Congregation of the Holy Office the promotor of justice is appointed by the Holy Father, by a note of the Secretariat of State. His duties are determined in the Laws and ordinances proper to the individual Dicasteries (v. Normae S. R. Rotae, art. 24, with the added Appendix ad Regulas servandas in iudiciis apud Supr. Sign. Apost. Tribunal, art. 14; v. also: CONGREGAZIONI ROMANE, SACRE, II. 1; TRIBUNALI DELLA S. SEDE, II and III). In the Vatican City State, in civil matters, in the ordinary contentious trial the procedure established by the CIC is applied (art. 15, last paragraph, Law on the sources). And since under that procedure, when the public interest is to be protected, the one who may intervene is the promotor of justice, so too in the Judicial Order of the Vatican City State this expression is also used to designate the guardian of the law (art. 3, 6, 16, 19, 22).
Bibliography16 works
Pietro Palazzini