Appeal

APPEAL. - The term is used in the various legal systems with different meanings, which can, however, be summed up in a single one, namely as a means of challenge in substantive law. In fact the r. differs profoundly from appeal, which is the means of challenge in procedural law and which presupposes an appealable judgment. The r., as a means of challenge in substantive law, does not, as a rule, have suspensive effect, whereas it generally does have devolutive effect.

I. APPEAL IN PROCEDURAL LAW

Against judgments that do not admit of appeal, a party may have recourse to the supreme tribunal for any defects of law contained in the judgment. Indeed, in almost all civil procedural systems (e.g., Vatican, Italian, French) only one review on the merits is granted, and after the judgment of second instance the matter becomes res judicata. The supreme tribunal of the aforementioned legal systems has the task of verifying that in the proceedings on the merits the norms of both substantive and procedural law have been observed. Given the regulatory function of this supreme tribunal, it is evident that this is not an appeal, since it does not have the faculty necessary to examine the case on the merits, but a recourse (r.), in order to obtain a ruling on any errors contained in the judgment of the court of merits.

Recourse is also made to the Supreme Tribunal of the Apostolic Signatura, and no appeal is made: it is true that this tribunal also has decisional faculties on the merits, as, for example, in the case of can. 1603 § 1 no. 1 CIC, but as a general rule the Apostolic Signatura is a tribunal of law and not of merits. Before the entry into force of the CIC, one could appeal not only against the judgments of judges, but also against the decrees of judges or of the Ordinary, which could in some way burden the party, and this appeal was called extrajudicial. The CIC, on the other hand, uses the word appeal only in the case of a challenge to a judgment, while it calls recourse (r.) every challenge against decrees. There are four cases in which the recourse (r.) has suspensive effect and therefore has elements in common with the appeal. Of these four cases, one concerns procedural law (can. 1709: recourse against the rejection of the libellus).

II. APPEAL IN ADMINISTRATIVE LAW

Although in the Church there is no so-called division of powers, nevertheless in canon law too there is the jurisdictional authority, that is, the authority to which the tribunals and the Ordinary belong, and the administrative authority, to which the Sacred Congregations and the Ordinary belong. In administrative law no grievance is admitted, apart from the r. Against a decision of the Ordinary, whether after a regular administrative process or outside of it, one must appeal to the competent Sacred Congregation. In fact the CIC at can. 1601 provides that: against the decrees of Ordinaries there is no appeal or r. to the Sacred Rota, but that the Sacred Congregations alone are competent to hear r. against such decrees. The r., therefore, presupposes an administrative decision of the Ordinary and is directed against it; however, except in the cases of cann. 647, 1465, 2153, 2243 and 2287, the r. does not have the effect of suspending the bishop's decision. In the other cases the r. has only a devolutive effect. As for the administrative processes of which the CIC speaks in Book IV, part 3, it will be appropriate to recall that against the definitive decree there is only the remedy of the r. to the Apostolic See and that, while the r. is pending, the Ordinary cannot validly confer upon others in a stable manner the parish or the benefice of which the cleric has been deprived (can. 2146 §§ 1 and 3). From this canon it follows that in cases of administrative processes, the r., although it does not have suspensive effect, nevertheless prevents the Ordinary from having the post occupied by the removed appellant occupied on a stable basis.

Giorgio Franco