TITLE III Methods of Avoiding Trials

In order to avoid judicial contentions an agreement or reconciliation is employed usefully, or the controversy can be committed to the judgment of one or more arbitrators.

For an agreement, a compromise, and an arbitrated judgment, the norms selected by the parties or, if the parties have selected none, the law laid down by the conference of bishops, if there is such a law, or the civil law in force in the place where the agreement is entered into is to be observed.

§1. An agreement or compromise cannot be made validly concerning matters which pertain to the public good and other matters about which the parties cannot make disposition freely.

§2. For temporal ecclesiastical goods, the formalities established by law for the alienation of ecclesiastical goods are to be observed whenever the matter demands it.

§1. If the civil law does not recognize the force of an arbitrated sentence unless a judge confirms it, an arbitrated sentence in an ecclesiastical controversy, in order to have force in the canonical forum, needs the confirmation of an ecclesiastical judge of the place where it was rendered.

§2. If civil law permits the challenge of an arbitrated judgment before a civil judge, however, the same challenge can be proposed in the canonical forum before an ecclesiastical judge competent to judge the controversy in the first grade.

The Preliminary Investigation

§1. Whenever an ordinary has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances, and imputability, unless such an inquiry seems entirely superfluous.

§2. Care must be taken so that the good name of anyone is not endangered from this investigation.

§3. The person who conducts the investigation has the same powers and obligations as an auditor in the process; the same person cannot act as a judge in the matter if a judicial process is initiated later.

§1. When it seems that sufficient evidence has been collected, the ordinary is to decide:

1/ whether a process to inflict or declare a penalty can be initiated;

2/ whether, attentive to can. 1341, this is expedient;

3/ whether a judicial process must be used or, unless the law forbids it, whether the matter must proceed by way of extrajudicial decree.

§2. The ordinary is to revoke or change the decree mentioned in §1 whenever new evidence indicates to him that another decision is necessary.

§3. In issuing the decrees mentioned in §§1 and 2, the ordinary is to hear two judges or other experts of the law if he considers it prudent.

§4. Before he makes a decision according to the norm of §1 and in order to avoid useless trials, the ordinary is to examine carefully whether it is expedient for him or the investigator, with the consent of the parties, to resolve equitably the question of damages.

The acts of the investigation, the decrees of the ordinary which initiated and concluded the investigation, and everything which preceded the investigation are to be kept in the secret archive of the curia if they are not necessary for the penal process.

If the ordinary thinks that the matter must proceed by way of extrajudicial decree:

1/ he is to inform the accused of the accusation and the proofs, giving an opportunity for self-defense, unless the accused neglected to appear after being properly summoned;

2/ he is to weigh carefully all the proofs and arguments with two assessors;

3/ if the delict is certainly established and a criminal action is not extinguished, he is to issue a decree according to the norm of cann. 1342-1350, setting forth the reasons in law and in fact at least briefly.

§1. If the ordinary has decreed that a judicial penal process must be initiated, he is to hand over the acts of the investigation to the promoter of justice who is to present a libellus of accusation to the judge according to the norm of cann. 1502 and 1504.

§2. The promoter of justice appointed to the higher tribunal acts as the petitioner before that tribunal.

To prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist. Once the cause ceases, all these measures must be revoked; they also end by the law itself when the penal process ceases.

§1. The judge who cites the accused must invite the accused to appoint an advocate according to the norm of can. 1481, §1 within the time limit set by the judge.

§2. If the accused does not make provision, the judge is to appoint an advocate before the joinder of the issue; this advocate will remain in this function as long as the accused does not appoint an advocate personally.

§1. At any grade of the trial the promoter of justice can renounce the trial at the command of or with the consent of the ordinary whose deliberation initiated the process.

§2. For validity the accused must accept the renunciation unless the accused was declared absent from the trial.

In the discussion of the case, whether done in written or oral form, the accused, either personally or through the advocate or procurator, always has the right to write or speak last.

If at any grade and stage of the penal trial it is evidently established that the accused did not commit the delict, the judge must declare this in a sentence and absolve the accused even if it is also established that criminal action has been extinguished.

§1. The accused can propose an appeal even if the sentence dismissed the accused only because the penalty was facultative or because the judge used the power mentioned in cann. 1344 and 1345.

§2. The promoter of justice can appeal whenever the promoter judges that the repair of scandal or the restoration of justice has not been provided for sufficiently.

§1. Without prejudice to the prescripts of the canons of this title and unless the nature of the matter precludes it, the canons on trials in general and on the ordinary contentious trial must be applied in a penal trial; the special norms for cases which pertain to the public good are also to be observed.

§2. The accused is not bound to confess the delict nor can an oath be administered to the accused.

§1. In the penal trial itself an injured party can bring a contentious action to repair damages incurred personally from the delict, according to the norm of can. 1596.

§2. The intervention of the injured party mentioned in §1 is not admitted later if it was not made in the first grade of the penal trial.

§3. The appeal in a case for damages is made according to the norm of cann. 1628-1640 even if an appeal cannot be made in the penal trial; if both appeals are proposed, although by different parties, there is to be a single appellate trial, without prejudice to the prescript of can. 1730.

§1. To avoid excessive delays in the penal trial the judge can defer the judgment for damages until he has rendered the definitive sentence in the penal trial.

§2. After rendering the sentence in the penal trial, the judge who does this must adjudicate for damages even if the penal trial still is pending because of a proposed challenge or the accused has been absolved for a cause which does not remove the obligation to repair damages.

Even if the sentence rendered in a penal trial has become a res iudicata, it in no way establishes the right of the injured party unless this party has intervened according to the norm of can. 1729.

What is established in the canons of this section concerning decrees must be applied to all singular administrative acts which are given in the external forum outside a trial excepting those which have been issued by the Roman Pontiff or an ecumenical council.

§1. Whenever a person considers himself or herself aggrieved by a decree, it is particularly desirable that the person and the author of the decree avoid any contention and take care to seek an equitable solution by common counsel, possibly using the mediation and effort of wise persons to avoid or settle the controversy in a suitable way.

§2. The conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind.

§3. The office or council mentioned in §2 is especially to be of assistance when the revocation of a decree has been requested according to the norm of can. 1734 and the time limits for making recourse have not elapsed. If recourse has been proposed against a decree, however, the superior who deals with the recourse is to urge the person making recourse and the author of the decree to seek a solution of this kind whenever he sees hope of a favorable outcome.

§1. Before proposing recourse a person must seek the revocation or emendation of the decree in writing from its author. When this petition is proposed, by that very fact suspension of the execution of the decree is also understood to be requested.

§2. The petition must be made within the peremptory period of ten useful days from the legitimate notification of the decree.

§3. The norms of §§1 and 2 are not valid:

1/ for recourse proposed to a bishop against decrees issued by authorities subject to him;

2/ for recourse proposed against a decree which decides a hierarchical recourse unless the bishop gave the decision;

3/ for recourse proposed according to the norm of cann. 57 and 1735.

If within thirty days after receiving the petition mentioned in can. 1734 the author of the decree communicates a new decree by which he either emends the earlier one or decides that the petition must be rejected, the time limits for making recourse run from the notification of the new decree. If the author makes no decision within the thirty days, however, the time limits run from the thirtieth day.

§1. In those matters in which hierarchical recourse suspends the execution of a decree, the petition mentioned in can. 1734 also has the same effect.

§2. In other cases, if the author of the decree has not decreed the suspension of execution within ten days after receiving the petition mentioned in can. 1734, an interim suspension can be sought from his hierarchical superior who can decree a suspension only for grave reasons and always cautiously so that the salvation of souls suffers no harm.

§3. If the execution of the decree has been suspended according to the norm of §2 and recourse is proposed afterwards, the person who must deal with the recourse according to the norm of can. 1737, §3 is to decide whether the suspension must be confirmed or revoked.

§4. If no recourse is proposed against the decree within the established time limit, the interim suspension of the execution given according to the norm of §§1 or 2 ceases by that very fact.

§1. A person who claims to have been aggrieved by a decree can make recourse for any just reason to the hierarchical superior of the one who issued the decree. The recourse can be proposed before the author of the decree who must transmit it immediately to the competent hierarchical superior.

§2. Recourse must be proposed within the peremptory time limit of fifteen useful days which in the cases mentioned in can. 1734, §3 run from the day on which the decree was communicated; in other cases, however, they run according to the norm of can. 1735.

§3. Nevertheless, even in cases in which recourse does not suspend the execution of the decree by the law itself and suspension has not been decreed according to the norm of can. 1736, §2, the superior can order the execution to be suspended for a grave cause, yet cautiously so that the salvation of souls suffers no harm.

The person making recourse always has the right to use an advocate or procurator, but useless delays are to be avoided; indeed, a legal representative is to be appointed ex officio if the person making recourse lacks one and the superior thinks it necessary. Nevertheless, the superior always can order the person making recourse to be present in order to be questioned.

The superior who deals with the recourse, as the case warrants, is permitted not only to confirm the decree or declare it invalid but also to rescind or revoke it or, if it seems more expedient to the superior, to emend, replace, or modify it.

When the ministry of any pastor becomes harmful or at least ineffective for any cause, even through no grave personal negligence, the diocesan bishop can remove him from the parish.

The causes for which a pastor can be removed legitimately from his parish are especially the following:

1/ a manner of acting which brings grave detriment or disturbance to ecclesiastical communion;

2/ ineptitude or a permanent infirmity of mind or body which renders the pastor unable to fulfill his functions usefully;

3/ loss of a good reputation among upright and responsible parishioners or an aversion to the pastor which it appears will not cease in a brief time;

4/ grave neglect or violation of parochial duties which persists after a warning;

5/ poor administration of temporal affairs with grave damage to the Church whenever another remedy to this harm cannot be found.

§1. If the instruction which was carried out has established the existence of one of the causes mentioned in can. 1740, the bishop is to discuss the matter with two pastors selected from the group established for this purpose in a stable manner by the presbyteral council at the proposal of the bishop. If the bishop then judges that removal must take place, he paternally is to persuade the pastor to resign within fifteen days, after having explained, for validity, the cause and arguments for the removal.

§2. The prescript of can. 682, §2 is to be observed for pastors who are members of a religious institute or a society of apostolic life.

A pastor can submit a resignation not only purely and simply but also conditionally, provided that the bishop can accept it legitimately and actually does accept it.

§1. If the pastor has not responded within the prescribed days, the bishop is to repeat the invitation and extend the useful time to respond.

§2. If the bishop establishes that the pastor received the second invitation but did not respond even though not prevented by any impediment, or if the pastor refuses to resign without giving any reasons, the bishop is to issue a decree of removal.

If the pastor opposes the cause given and its reasons and alleges reasons which seem insufficient to the bishop, the bishop, in order to act validly, is:

1/ to invite the pastor to organize his objections in a written report after he has inspected the acts, and offer any proofs he has to the contrary;

2/ when any necessary instruction is completed, to consider the matter together with the same pastors mentioned in can. 1742, §1, unless others must be designated because those pastors are unavailable;

3/ finally, to establish whether the pastor must be removed or not and promptly to issue a decree on the matter.

After the pastor has been removed, the bishop is to make provision either for an assignment to some other office, if he is suitable for this, or for a pension as the case warrants and circumstances permit.

§1. The removed pastor must refrain from exercising the function of pastor, vacate the rectory as soon as possible, and hand over everything belonging to the parish to the person to whom the bishop has entrusted the parish.

§2. If, however, the man is sick and cannot be transferred elsewhere from the rectory without inconvenience, the bishop is to leave him the use, even exclusive use, of the rectory while this necessity lasts.

§3. While recourse against a decree of removal is pending, the bishop cannot appoint a new pastor, but is to provide a parochial administrator in the meantime.

If the good of souls or the necessity or advantage of the Church demands that a pastor be transferred from a parish which he is governing usefully to another parish or another office, the bishop is to propose the transfer to him in writing and persuade him to consent to it out of love of God and souls.

If the pastor does not intend to submit to the counsel and persuasions of the bishop, he is to explain the reasons in writing.

Notwithstanding the reasons alleged, if the bishop decides not to withdraw from his proposal, he is to consider the reasons which favor or oppose the transfer with two pastors selected according to the norm of can. 1742, §1. If he then decides to implement the transfer, however, he is to repeat the paternal exhortations to the pastor.

§1. When this has been done, if the pastor still refuses and the bishop thinks that the transfer must be made, he is to issue a decree of transfer, establishing that the parish will be vacant after the lapse of a set time.

§2. If this period of time has passed without action, he is to declare the parish vacant.

In cases of transfer the prescripts of can. 1747 are to be applied, canonical equity is to be observed, and the salvation of souls, which must always be the supreme law in the Church, is to be kept before one’s eyes.