COMPLAINT. - A name designating, also in canon law, procedural institutions aimed at achieving different objectives. Of these institutions, the q. falsi and the q. nullitatis are governed by the rules regulating ordinary process, while the q. damni and the q. delicti concern criminal process, which is considered by canon law to be a special process.
The q. damni is a means offered by the CIC so that criminal action may be brought. This action is in fact reserved, as a rule (that is, save for the exception set out below), to the promoter of justice (can. 1934). To him, however, notice of the offense may come from the injured party, who is the passive subject of the crime, that is, the party who has been directly harmed by it; in which case the injured party, for the purpose of obtaining compensation for the damage, brings the committed offense to the knowledge of the promoter of justice by the specific act called a q., which prompts the institution of criminal action on the part of the promoter of justice (can. 1935 § 1). There is, on the other hand, a simple denunciation by any of the faithful when the purpose is the reparation of a scandal or of a harm to the community (ibid.).
The q. delicti represents an exception to the rule stated above concerning the function of the promoter of justice in matters of criminal actions. In fact, for the offenses of insult and defamation, the q. of the injured party is always necessary in order for criminal action to be brought; unless it is a matter of grave insult or defamation inflicted on a cleric or religious, or by a cleric or religious on others. In these cases criminal action may also be instituted ex officio (can. 1938, with reference also to can. 1618).
The q. of forgery (q. falsi) is a means granted by law specifically to obtain a declaration that a document, whether public or private, produced in court is forged. It is admissible as long as the document has not been recognized as genuine by a civil or criminal judgment that has become final, and it may be brought either as a principal action, thereby giving rise to an autonomous process of verification, or incidentally. In bringing the q., all the constitutive elements and the proofs of the forgery must be indicated; the judge, before proceeding to admit the q. and to the instruction, must, given the delicacy of the matter, consult the party against whom the q. is brought to learn whether or not that party intends to maintain the judicial production of the challenged document, and if the answer is affirmative and the q. is admitted (ex cann. 1700 and 1839), he orders the deposit of the document with the chancery of the tribunal so that its safe preservation may thereby be provided for.
Proof of the forgery may be given by any means of instruction, to be taken within the terms and in the manner fixed, if appropriate, by the judge, to whose assessment is also entrusted the evaluation of whether or not it is opportune to suspend the handling of the principal case (ex cann. 1627 ff. and 1839). In the trial of the q. of forgery the promoter of justice must intervene (ex cann. 1586).
The judgment that declares a document to be forged lays down the measures to be adopted regarding its possible correction, destruction or return, and is binding on all; the rejection, on the other hand, of the q. does not in any way imply an implicit declaration of the genuineness of the document, since this must be expressed.
The q. of nullity (q. nullitatis) is an extraordinary means of impugning a judgment, admitted by the CIC in relation to cases in which a judgment is affected by nullity (v.).
Having regard to its nature, the defect of nullity of a judgment may be curable or incurable according to whether or not the parties may renounce the right to assert it. Hence the twofold regulation of the q.
A judgment is affected by incurable nullity: 1) when it has been pronounced by a judge who is absolutely incompetent or by a collegiate judge not replaced in accordance with the provision of can. 1576 § 1 (can. 1892, n. 1); 2) when it has been pronounced with regard to one or more parties who could not legitimately stand in judgment for absolute lack of legitimatio ad processum or of legitimatio ad causam (can. 1892, n. 2; cf. cann. 1646, 1654); 3) when one or more persons who were in judgment nomine alterius were without a legitimate mandate (can. 1892, n. 3). Since it is a matter of incurable nullity, this last ground of nullity does not disappear by effect of ratification.
A judgment is affected by curable nullity when there has been a failure of regular citation, or when the judgment itself lacks the grounds (save in that case the provision of can. 1605) or the signatures prescribed by law, or the indication of the date (year, month and day) and of the place in which it was issued (can. 1894).
Nullities may be asserted either by way of exception or by means of the q. nullitatis. While 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 term of thirty years, running from the day of the publication of the judgment, if it is a matter of incurable nullity, or of three months, when on the other hand the nullity is curable.
The judge before whom the q. of nullity is to be brought is the one who rendered the judgment being impugned. An exception is made to this rule for the q. of curable 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 judgments of the Rota, which is reserved to the Signatura, unless it is cumulated 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 same person who issued the judgment is competent to judge its nullity and the complainant fears that he may not be sufficiently serene and impartial, the judge is considered ipso facto suspect and as such is replaced in the same seat of judgment (cann. 1615 and 1896) by another judge. This is, as is evident, a special case of recusal, the ground of which rests simply in the fact that a null judgment has been issued by the judge.
The q. nullitatis is governed, as regards its procedural development, by the common rules. It is in fact brought by a specific judicial petition in the form of a libellus, in which must be contained all the necessary elements for identifying the case (parties, judge, judgment), as well as the grounds of the impugnation (defects of the judgment). The judge, having examined the acts, if the q. does not appear at once unfounded, will order the citation of the other parties, 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 in the trial. 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 process is to be renewed. The judgment may be declaratory of the nullity, in which case it will also rule on the merits, unless the Signatura has judged the q., given that the latter has the obligation to remit the parties to the Rota for the decision on the merits (can. 1604 § 3). If proofs are necessary, these will be produced according to the common rules in the instructional period. The judgment, in any case, must decide on the judicial costs and will be subject, like any judgment, to all means of impugnation.
If the q. of nullity is brought cumulatively with an appeal, the trial will be introduced by an act in which the grounds of appeal and the grounds of nullity must be indicated, and will be conducted according to the rules laid down for appeal. The judgment, recognizing the nullity of the impugned judgment, must remit the parties for the merits to the judge a quo.
The expiry of the term entails the curing of the defect even if the relative ground of nullity — being a matter of public interest — has not been asserted by means of the complaint of nullity by the promoter of justice, without prejudice to the revocability of the sentence under cann. 1903 and 1989.
The effect of the granting of the q. consists in the restoration of the procedural situation as it was before the pronouncement of the void judgment, independently of the execution to which the latter may or may not have been subjected.
As for the acts of the trial concluded by the judgment declared null, they may remain valid and therefore procedurally usable only in the case in which the judgment is affected by nullity for a defect of its own (e.g., an insufficient number of judges) and not for a reflected defect (absolute incompetence of the judge, lack of standing to sue).
Bibliography8 works
Fernando Della Rocca