ROMAN APPEALS
Neri Capponi
In ecclesiastical as well as in secular law, most disputes do not end up in litigation and most litigation does not end up in an appellate process. This principle applies to the work of the St. Joseph Foundation, which manages to resolve most cases which are brought to it without engaging in any formal canonical process. Nonetheless, the <possibility> of litigation, including the prospect of an appeal, often encourages the parties to reach an informal settlement, especially when one party knows that the other has successfully used the legal process. Since the St. Joseph Foundation has been involved in the canonical appeal process and will undoubtedly be involved in the future, Christifidelis readers may be interested in knowing a bit more about it, even though limitations of space will allow no more that a very brief synopsis.

In general, appeals have to do with procedural law and procedural law is closely connected with constitutional law because it lays down the rules of the game in which justice is administered, the administration of justice being one of the primary functions of any organized human society. Be it even in a rudimentary form, appeal is an institution that exists in all human societies and is designed to limit, if not to avert, the two evils that threaten the administration of justice: human malice and human error.

Therefore if we deal with appeals in the Catholic Church and with appeals to Rome in particular, we must give a quick preliminary glance at the constitutional structure of the Catholic Church and to those human influences (because the Church is made up of men and is not ruled by angels) which have fashioned the procedural law of the Church.

The Constitution Of The Church

Briefly these are the fundamental points of the Church's constitution as given by her Founder. <In the first place> the Church is <not a democracy>, i.e., power in the Church is received from God, not from the people. <Second>, the power centers as instituted by Christ are two (perhaps three): the Pope at the center, the bishops locally.

All other power centers are a product of history, not instituted by Christ, although certain theologians maintain that other power centers exist (like metropolitan archbishops and local councils) which are, so to speak, between pope and bishops.

They could be regarded as belonging to the divine constitution of the Church because they go back to the immediate post apostolic age and therefore could claim a generic apostolic institution. <Third>, in the divinely instituted power centers there is no division of powers: the pope and bishops are administrators, judges and law-givers in their respective areas of competence. <Fourth>, because of the Roman primacy the pope is by divine law the judge of the universal Church and final court of appeal for all cases. This right of appeal is sanctioned by divine law as embodied in canon 1417 (para.

1): "In virtue of the primacy of the Roman Pontiff, anyone of the faithful is free to bring to or introduce before the Holy See a case either contentious or penal in any grade of judgment and at any stage of litigation. "True enough, the canon speaks only of contentious and criminal cases but bringing the theological principles embodied in canon 1417 (cfr. First Vatican Council's definition of papal primacy) to its logical conclusion, I should say that this right of appeal to Rome includes also administrative cases.

This is a most important point within the scope of this article as administrative cases comprise the great majority of those in which the St. Joseph Foundation is involved.

Human Influences

We now turn to the consideration of the human influences which, from the start, have heavily conditioned the Church's legal thought, building a complex legal system round the God-given but sketchy core of the Church's constitution. It is obvious that, as the Church was born in the Mediterranean, its rudimentary legal system was influenced by Jewish law and by Roman law but, as far as the West is concerned, the Church's legal system remains nebulous until the twelfth century, when it met with the rediscovered great and systematic collection of Roman Law made by the Emperor Justinian in the sixth century. One must remember that Justinian's is a slanted collection as it emphasizes the most authoritarian and bureaucratic aspects of the late Roman Empire when the Romans had ceased to be citizens and had become subjects. This, of course, was reflected also in Justinian's procedural law. The Justinian collection helped the formation of a systematic ecclesiastical legal system at a time when the papacy was centralizing the Western Church and creating the beginnings of a central ecclesiastical bureaucracy.

Following the rise of the absolutist European states in the sixteenth and seventeenth centuries and the effects this had on the central government of the Church, the next great influence was the rigid, abstract and self-contained Napoleonic Code and the centralized, bureaucratic and authoritarian state that emerged from the French Revolution. These influences brought about the further centralization of the Church, an increase of power of the departments of the Roman Curia and finally the creation of the Code of Canon Law in 1917, which I view as a legal revolution in Church law and not a very good one at that. The 1917 Code superseded the much more elastic, open and concrete <Corpus Iuris Canonici> in which two thousand years of ecclesiastical legal wisdom were condensed and in which the rights of the faithful were recognized, which is more than one can say of the 1917 Code.

History Of Roman Appeals

How does the system of Roman appeals fit into the various periods of Church legal history just outlined? In the first period, from the beginning to about the eleventh-twelfth centuries the appeals to the pope, excepting those from the Roman diocese itself and from the Roman province, were few and far between, were always in second and final appeal and concerned questions of great moment. Such appeals were dealt with by the pope personally or by his convening a synod or council of the bishops of the Roman province.

In the second period, from the twelfth century to the sixteenth century, which saw the centralization of the Church (mainly of the Latin Church) and the growth of papal bureaucracy, appeals were dealt with either in the assembly of the cardinals presided over by the pope, i.e., the Consistory, or by a group of papal chaplains delegated by the pope. There were two groups of papal chaplains: one that dealt with contentious and criminal cases and became a little later the Tribunal of the Rota and another that later on formed the so-called Signatura which was divided into two sections (Signatura of Justice and Signatura of Grace) and dealt with petitions to the pope of a judicial nature (remedies against miscarriage of justice, etc.) or with grants of favors or pardons.

The third period starts with the Bull, <Immensa>, of Sixtus V in 1588. The Bull created from the Consistory, which lost all of its importance, the departments or congregations of the Roman Curia, which therefore became an organic bureaucratic body. (For the sake of consistency, I will refer to the executive departments of the Holy See as congregations for the remainder of this article, even though we now have departments called Pontifical Commissions and Councils). Each congregation was headed by a panel of cardinals (the old consistorial committees) chaired by a cardinal with <full powers> who reported directly to the pope. Although in theory the congregations did not have judicial powers of their own, they became so powerful that they encroached more and more on the prerogatives of the Tribunals who, not being headed by cardinals, were not in a position to resist the pressure of the congregations. Besides, the decisions of the congregations were more rapid and less costly than Court proceedings (and, according to <some> historians, less open to bribery). The Signatura did not suffer too much because of its extraordinary function in the judicial field, but the Rota suffered considerably as more and more cases were decided more rapidly and in secret by the congregations. Benedict XIV, the great jurist pope, tried to put a stop to this trend by immensely increasing in 1746 the powers of the Rota as an appeal court from the decisions of the Roman Tribunals, but this did not last long. Both the Signatura and Rota were closed during the occupation of Rome by Napoleon and were practically turned into civil courts of the Papal States when the pope returned to Rome after the fall of the Napoleonic Empire, losing all jurisdiction over ecclesiastical cases which was taken over by the congregations as they had become known. It is true that the Rota was allowed to hear ecclesiastical cases from outside Rome but no longer had jurisdiction on the decisions of the Roman congregations. This of course meant that when the Papal States were annexed by the Kingdom of Italy in 1870 both the Signatura and the Rota ceased to function, leaving the Roman congregations in full and absolute control. This was very serious from a procedural point of view because appeals were no longer decided by courts but by the Roman bureaucratic congregations, whose decisions are never motivated, rarely made public and where the right to be heard does not exist.

The fourth period starts with the reorganization of the Roman Curia by St. Pius X in 1908 with the Constitution, <Sapienti consilio>, which is a providential step backwards towards proper procedure in appeals, followed nine years later by a half step in the wrong direction again with the Code of Canon Law in 1917. The fact is that St. Pius X was fundamentally ambiguous on the subject of Roman 'appeals because, although he restored the competence of the Signatura on questions of law and in the granting of extraordinary procedures and the competence of the Rota in all contentious and criminal cases, he introduced the principle of Franco-Italian public law, which makes a distinction between administrative and contentious or criminal cases. However, he did so without introducing at the same time even those flimsy safeguards which existed in the administrative procedures of both those legal systems. St. Pius X, furthermore, did not make recourse to the tribunals in contentious and criminal cases mandatory, therefore leaving a loophole for the intervention of the congregations. On the other hand he reinforced the Signatura, giving it the structure of a congregation headed by a cardinal. Scholars have seen in this reform not only the introduction of Franco-Italian administrative law but also its ideological premise, i.e., the distinction between "subjective rights," which have a right to be satisfied and are a matter for the courts and the "legitimate interests," which can be given some consideration but give no right to be satisfied. Curiously enough (but a natural consequence of the ambiguity of Pius X's reforms) it is in this nine year period, between <Sapienti consilio> and the emanation of the 1917 Code, that we have cases of what one might consider "legitimate interests" brought to the cognizance of the proper courts through the intermediary of a papal commission or delegation, a procedure much in use in the preceding centuries and which shows that if St. Pius X had lived longer certain authoritarian tendencies, at least in the legal and organizational field, would have been kept within bounds.

With the Code of 1917 all these loopholes were, in practice, definitely dosed and it was peremptorily stated that there could be no appeal from episcopal decisions (and <a fortiori> from the decisions of the Roman congregations) to the Roman courts. The system of Roman appeals as it appears from the Code of 1917 is as follows. Appeals from bishops' decisions or decrees (also in criminal cases) would go to the competent Roman congregation which would decide in secrecy and according to its internal rules.

The appellant had no right to be heard and in the case of an unfavorable decision by a Roman congregation had only the extraordinary remedy of a direct appeal to the pope which had very few possibilities of being accepted. All contentious cases and those criminal cases which had been decided by the courts went on appeal to the Holy Roman Rota, a very fine tribunal which, after the restoration and reform of St. Pius X, collected the best brains from all over the Catholic world. It is still so, to a certain extent.

The Signatura, also reformed by St. Pius X, remained as a final appeal court on points of law (the function it had exercised from the reform of the Roman Curia by Sixtus V in 1588). It also had competence to grant new hearings before the Rota, to judge Rota judges, to solve conflicts of competence and to advise the pontiff on special cases to be judged by a Papal Commission. Lastly, it acted as a congregation when exercising its functions as a comptroller of all tribunals in the Catholic Church, defining their competence and establishing new tribunals. The new Signatura when acting as a tribunal was a two tier court: at a lower level a college of prelates who judged upon the admissibility of cases and then an upper tier of cardinals who passed judgment on the cases that had been admitted.

To complete this overall view of appeal procedure and its exercise one must add that, after 1917, in canonical penal or "criminal" cases the bishops could, in most instances, choose between an administrative procedure and bringing the accused before a tribunal, where procedures are more strict and where rights are more carefully observed. Faced with this choice bishops nearly always chose the former.

Unfortunately, this still happens as we have seen in the recent case, familiar to Christifidelis readers, of six members of the faithful excommunicated for "schism" by decree of the Bishop of Honolulu. The accused, therefore, had no choice but to appeal from the bishop's infliction of the penalty by administrative procedure to a Roman congregation, as was done in the Hawaii case. One must point out, however, that before the principal of episcopal collegiality became a fixation following Vatican II, the Roman congregations were not so inclined to automatically approve episcopal decisions and many a non-influential bishop found his sentence reversed by Rome. We may hope that the reversal by the Congregation for the Doctrine of the Faith of the Hawaii excommunications signals a favorable trend.

The Present System

The last period in this history of Roman appeals, the one that interests us directly, but which cannot be understood unless we take into consideration the previous periods, is inaugurated by the Second Vatican Council and by the new Code of Canon Law in 1983. The Council rediscovered certain important principles that were part of the texture of the ecclesiastical polity in the first millennium and in part of the second millennium, but that had been slowly forgotten after the closing of the Catholic fortress as a result of the Reformation and especially after the authoritarian involution provoked by the definition of the Petrine Primacy of Vatican I and the reception of the so-called Napoleonic state system in the structure of the Catholic Church. Thus the role of the local Church and Episcopal collegiality was given new emphasis and, as far as our subject is concerned, it was recognized that certain basic rights of the faithful lay at the foundation of the divinely instituted constitution of the Church, some of which, such as the right to defend oneself before a court of law, belonged to natural law. The problem therefore arose as to how the rights of the faithful in procedural law, already protected in contentious cases before the ordinary courts, could also receive the same protection in so-called administrative cases which the Code of 1917 had explicitly removed from the jurisdiction of the courts. One way out would have been simply to go back to the good old days of, say, the fifteenth century or of Benedict XIV in the eighteenth century but, as you know, once the eggs are scrambled it is difficult if not impossible to unscramble them so another solution was found.

As the Church had, at least in its central organization, adopted the centralized Franco-Italian bureaucratic state s model with its division between administrative law and procedure and judicial procedure, it is from that system that a resolution was found by instituting a central administrative tribunal in imitation of the <Conseil d'Etat> in France or <Consiglio di Stato> in Italy. The formula adopted by the Church was to establish a Second Section of the Apostolic Signatura. This Second Section was set up by Paul VI through the Constitution, <Regimini Ecclesiae Universae> on August 15th, 1967, which also reformed the Roman Curia. It would not have been a bad idea if the Italian system had been more fully imitated by creating administrative tribunals at a local level as well, thus guaranteeing a greater equity locally and sparing the Roman congregations and Second Section of the Signatura a lot of extra work. The final draft of the 1983 Code did contain provisions for such local and regional administrative tribunals but, in the final version, they are only just mentions in c. 1400, para 2, but without further details.

The present set-up is based on the further reform of the Roman Curia (the third in this century!) undertaken by the present pope with the Constitution, <Pastor bonus>, of June 28, 1988. It is an enlargement and further specification of the reform of Paul VI whose main lines it follows. The principal aspect of both reforms is the all pervasive control that the Secretarial of State exercises on the Roman Curia. Such control was invented by Paul VI and caused the raising of many an eyebrow. This control is further detailed in the <General Regulations of the Roman Curia> of February 4, 1992.

Roman appeals, therefore, fall into two categories. The first is normal litigation and cases concerning the status of persons which need judicial ascertainment (matrimonial and other such cases). Such matters normally go through the paces of first instance diocesan tribunal and second instance metropolitan tribunals (canon 1438), and lastly can be appealed to the Rota with possible remedies in the first section of the Signatura. Involvement by the St. Joseph Foundation in these kinds of cases is very rare. The second category involves administrative cases, which concern us most, where appeals from decrees of inferior or local Ecclesiastical authorities of whatever rank are dealt with first by the competent Roman congregation and then, in final appeal, by the Second Section of the Apostolic Signatura.

The Roman Rota

It is widely believed that the Rota deals only with matrimonial cases. Although the majority are matrimonial cases, a few deal with litigation or are criminal cases (property, defamation, etc.). I remember one celebrated case which was decided by a Rota panel presided over by the future Cardinal Heard a Scotsman. An order of nuns had tried by formally legal but in reality dishonest means to deprive the Teutonic Order of legitimate property rights. The nuns lost because Heard applied natural law instead of the law of the country (in this case Italian law). If the Code did not allow bishops, in criminal cases as well, to use administrative procedure instead of the more lengthy but more equitable judicial one, the Rota would deal with many more of these non-matrimonial cases than it does at present.

The judges of the Roman Rota (formerly the Holy Roman Rota) sit in turns of three.

They are appointed by the pope and are presided over by a dean also appointed by the pope. The Rota is supposed to be staffed by the finest legal brains of the Catholic Church and, from my own personal experience, I can say it certainly was so until the early seventies. After that date I transferred my residence to Florence definitely and those rare times I have pleaded before the Rota I have done so through my Rome correspondent. Therefore, I have had since then no direct experience of that Tribunal, mainly because most of my cases end in appeal at a local level.

The competence and procedures of the Rota, important as they are, will not be discussed in this article because the interests of my "audience" are more towards administrative matters, which are never brought before the Rota.

Roman Congregations

We now consider Roman appeals, under administrative procedure, as dealt with by the competent Roman congregations. Before the appeal is examined by the competent congregation, the appellant must within ten days petition the author of the adverse decision to rescind it. Should the latter refuse to do so the appellant must, within fifteen days from the refusal, appeal to Rome. If the author of the decision does not give an answer within thirty days he is presumed to have answered negatively and from the thirtieth day the appellant has the right to appeal to Rome within the prescribed time limits. After the Congregation has rendered its judgment the plaintiff has thirty days to appeal from the decision of the congregation to the Second Section of the Apostolic Signatura.

The Apostolic Signatura

As I have already mentioned the Signatura is partly a tribunal and partly a congregation. It is structured as a congregation under a prefect who presides over a panel of cardinals and archbishops (at one time only cardinals) and a "Congress" which, when the Signatura acts as a tribunal, is composed of nine prelates presided over by the prefect. The Congress acts as a filter and decides whether there is a <prima facie> case, whether the party has legal standing or judicial capacity to appear in court and whether the "legitimate interest" whose satisfaction is sought is in any way legally connected with the plaintiff. The personnel of the First and Second Sections are the same, acting in different capacities.

The Second Section of the Signatura is competent to hear appeals from decisions of the Roman congregations, in solving conflicts of competence between the said congregations and in dealing with administrative matters with which the pope might entrust it. The competence of the Second Section is restricted to the examination of possible violations of the law, both substantial and procedural, perpetrated by a congregation in reaching a decision. The Signatura cannot inquire into the merits of the case. Of course, its scope would be much widened if the Second Section gave consideration to natural law which is officially a component part of Canon Law. At present, however, the Signatura, encouraged also by the Pontifical Commission of the interpretation of Legislative Texts, gives a strict interpretation to its powers. As the present policy of the Roman congregations is that of nearly always rejecting recourses made against episcopal decisions, the Signatura is at present submerged with cases. To relieve the Signatura (apart from an improbable change of policy of the Roman Curia), the institution of regional or national administrative tribunals might be the answer, as I have already mentioned. The appeals in this case would go straight from the regional or national tribunals to the Signatura, which should be allowed a wider scope for its competence.

Appeals before the Second Section are started by a motivated petition presented by the appellant's advocate containing the arguments both in fact and in law that justify the appeal. The Promoter of Justice then intervenes, presenting his case for or against the admissibility of the appeal. The advocate then presents his rejoinder and the last word is with the Promoter of Justice. Following this exchange the appeal is examined by the Congress presided over by the Cardinal Prefect (called Pro-Prefect if he is not a cardinal). The Congress decides if the appeal can be admitted or not. If the appeal is admitted, the advocate is summoned by the Tribunal for the so-called "definition of the doubt," i.e., the definition of the ambit of the case or, in other words, what the Signatura is actually called upon to decide. The definition of the doubt takes place before the Secretary of the Signatura in his capacity as chief administrative officer.

Following the definition of the doubt the advocates for both parties and the Promoter of Justice have another round of pleadings, after which the case goes before the second tier judges for a decision. Secrecy is the rule for the Signatura procedure, except for the sentence, which is public. If the Prefect of the Signatura wishes, for pastoral or other reasons, that the sentence be kept secret, he must officially say so.

Using The Appeal Process

The Church's appeal process belongs to all the faithful and we have a right to use it whenever we are convinced that our rights have been violated, provided that all other means of resolving the issue have been tried first. Then we must remember that the appeal process was not instituted by Christ. Thus like all other legal systems of human invention, the process can be slow and justice does not always triumph in the end. At the same time, in recognition of our responsibilities as members of Christ's Church, if we have to appeal to Rome, we must <always> do so without bitterness, <always> without undue insistence and <never> for marginal issues.


Taken from the April, 1994 Eastertide Vol. 12, No. 2 of Christifidelis.


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