QUERELA. – A name that designates, also in canon law, procedural institutions directed toward the achievement of different objectives. Of these institutions, the q. falsi and the q. nullitatis are governed by the rules regulating ordinary proceedings, whereas the q. damni and the q. delicti concern criminal proceedings, which are regarded by canon law as special proceedings.
The q. damni is a means provided by the CIC whereby criminal proceedings may be instituted. These are in fact reserved, as a rule (subject, that is, to the exception mentioned below), to the promoter of justice (can. 1934). The promoter of justice, however, may receive knowledge of the offence from the injured party, who is the passive subject of the crime, that is, the party directly damaged by it; in such a case, the injured party, for the purpose of obtaining compensation for the damage, informs the promoter of justice of the offence committed by means of the specific act called q., which leads the promoter of justice to institute criminal proceedings (can. 1935 § 1). There is instead a simple denunciation by any member of the faithful when the purpose is the reparation of a scandal or of harm to the community (ibid.).
The q. delicti constitutes an exception to the above-mentioned rule concerning the function of the promoter of justice in matters of criminal proceedings. Indeed, in cases of insult and defamation, the q. of the injured party is always necessary for criminal proceedings to be instituted, unless the insult or defamation is serious and has been inflicted upon a cleric or religious, or by a cleric or religious upon another person. In these cases, criminal proceedings may also be instituted ex officio (can. 1938, with reference also to can. 1618).
The q. of forgery (q. falsi) is a means specifically granted by law for obtaining a declaration that a document, whether public or private, produced in court is false. It is admissible so long as the document has not been declared genuine by a civil or criminal judgment that has become res judicata, and it may be brought either as a principal action, thereby giving rise to an independent process of ascertainment, or incidentally. In bringing the q., all the elements constituting and proving the forgery must be indicated; before proceeding to admit the q. and to take evidence, the judge, given the delicacy of the matter, must question the respondent to ascertain whether or not he intends to maintain the judicial production of the contested document and, if the answer is affirmative and the q. is admitted (ex cann. 1700 and 1839), order that the document be deposited in the tribunal registry so that its safe preservation may thereby be ensured.
Proof of the forgery may be furnished by any evidentiary means, to be taken within the time limits and in the manner fixed, where appropriate, by the judge, who is also entrusted with assessing whether or not it is expedient to suspend consideration of the principal case (ex cann. 1627 ff. and 1839). The promoter of justice must take part in proceedings concerning q. of forgery (ex cann. 1586).
The judgment declaring a document to be false specifies the measures to be adopted concerning its possible correction, destruction, or restitution, and is binding upon all; the dismissal, on the other hand, of the q. in no way signifies an implicit declaration of the document’s genuineness, which must be expressly declared.
The q. of nullity (q. nullitatis) is an extraordinary means of challenging a judgment admitted by the CIC in cases where nullity (v.).
Having regard to its nature, the defect of nullity in a judgment may be remediable or irremediable, according as the parties may or may not waive the right to invoke II. Hence the twofold regulation of the q.
A judgment is affected by irremediable nullity: 1) when it has been pronounced by a judge who is absolutely incompetent or by a collegiate court not constituted in accordance with the provision of can. 1576 § 1 (can. 1892, n. 1); 2) when it has been pronounced with respect to one or more parties who could not lawfully stand trial because of an absolute lack of legitimatio ad processum or legitimatio ad consum (can. 1892, n. 2; cf. cann. 1646, 1654); 3) when one or more persons who were parties to the proceedings nomine alterius lacked a lawful mandate (can. 1892, n. 3). Since this is irremediable nullity, this ground of nullity does not disappear through ratification.
A judgment is affected by remediable nullity when a proper citation has been lacking, or when the judgment itself lacks its grounds (except in this case for the provision of can. 1605), the signatures prescribed by law, or an indication of the date (year, month, and day) and the place where it was issued (can. 1894).
Nullities may be invoked either by way of exception or by means of the q. nullitatis. Whereas the exceptio nullitatis may be brought without limitation of time and is generally used in opposition to the execution of the judgment, the q. nullitatis must be brought within a period of thirty years, running from the day of publication of the judgment when the nullity is irremediable, or within three months when, on the contrary, the nullity is remediable.
The judge before whom the q. of nullity must be brought is the one who rendered the judgment being challenged. An exception to this rule is made for the q. of remediable nullity in general when it is brought jointly with an appeal, in which case the competence of the appellate judge prevails (can. 1895), and for the q. of nullity against rotal judgments, which is reserved to the Segnatura, unless it is joined with an appeal, in which case the competence of the higher turn to which the appellate judge is assigned prevails (can. 1603 § 1, n. 3). When the person competent to judge the nullity of the judgment is the same person who rendered it, and the querelant fears that he may not be sufficiently impartial and unprejudiced, the judge is considered ipso facto suspect and, as such, is replaced in the same instance (cann. 1615 and 1896) by another judge. This is clearly a special case of recusation, the ground for which rests simply on the fact that the judge has rendered a null judgment.
The q. nullitatis is governed, as regards its procedural course, by the common rules. It is in fact initiated by a specific judicial petition in the form of a libellus, which must contain all the necessary elements identifying the case (the parties, the judge, and the judgment), as well as the grounds of the challenge (defects in the judgment). After examining the acts, if the q. does not appear manifestly unfounded, the judge will order the citation of the other parties and of the promoter of justice, since the accusation of the nullity of a judgment is a matter of public interest, as well as of the defender of the bond if he was a party to the proceedings. The joinder of issue will take place in the ordinary forms and will concern the procedural question of the validity of the judgment and that of whether or not the proceedings are to be renewed. The judgment may declare the nullity, in which case it will also rule on the merits, unless the q. was judged by the Segnatura, since the latter is obliged to remit the parties to the Rota for a decision on the merits (can. 1604 § 3). If evidence is necessary, it will be produced according to the common rules during the evidentiary stage. The judgment must, in any event, decide on judicial costs and, like any judgment, will be subject to all means of challenge.
If the q. of nullity is brought cumulatively with the appeal, the proceedings will be instituted by an act in which the grounds of appeal and the grounds of nullity must be indicated, and will proceed according to the rules laid down for appeals. The judgment, upon recognizing the nullity of the challenged judgment, must remit the parties on the merits to the judge a quo.
La scadenza del termine implica sanatoria del vizio anche se il relativo motivo di nullità — avendo interesse pubblico — non sia stato fatto valere con la q. di nullità dal promotore di giustizia, salva la ritrattabilità della sentenza a norma dei cann. 1903 e 1989.
L'effetto dell'accoglimento della q. consiste nel ripristino della situazione processuale quale si aveva prima della pronunzia della sentenza nulla, indipendentemente dalla esecuzione cui questa possa o meno essere stata sottoposta.
Quanto agli atti del giudizio definito con la sentenza dichiarata nulla, essi potranno restare validi e quindi processualmente utilizzabili nel solo caso in cui la sentenza sia affetta da nullità per vizio proprio (ad es., numero insufficiente di giudici) e non per vizio riflesso (incompetenza assoluta del giudice, difetto di legittimazione a stare in giudizio).
pp. 243 sgg., 334 sgg.; F. Della Rocca, Istituzioni di diritto processuale canonico, Torino 1946, pp. 253 sgg., 342 sgg.
Fernando Della Rocca