Folia Theologica et Canonica, Supplementum (2016)

Péter Artner, Preventive Disciplinary Measures Before the Application of a Penalty

PREVENTIVE DISCIPLINARY MEASURES BEFORE THE APPLICATION OF A PENALTY 45

In other cases or even if the warning was not enough, the ordinary may rebuke (c. 1339 §2) the offender to reach the aim of the penalty. Rebuke is used in cases of behavior which gives rise to scandal or serious disturbance of public order.21

Parallel to the above mentioned means the ordinary may apply penance to substitute or to augment a penalty. Because the forms of the penances are not listed in the Code, it can be defined in a broad sense: penance can be any kind of instrument that can help restore justice harmed, but primarily to reform the offender. The penance can include making a retreat of some days in a pious or religious house, or giving alms for the poor, making a pilgrimage or do some work of charity (see: c. 1249).22

When the offender doesn’t show sincere signs of repentance, or he/she is persistent in the offence, and neither warning, nor any other kind of pastoral actions can make him/her change his/her behavior, before applying real penalties the ordinary may try to apply different pastoral or disciplinary measures. These can be classified in three main groups: (1) prohibitions of different actions (2) the removal of the offender from a certain territory or among certain persons (3) other measures (e.g., medical care). These can be used combined, fully or partially and for a determinate or indeterminate period of time.

The ordinary can prohibit the actions of the offender or limit his rights. These rights may arise even from an office, and this can be the first step of the later removal or deprivation from office, if it would be necessary. The ordinary can limit the faculties of the offender or even revoke them.

IV. Natural Rights of Offender

The offender’s natural rights can be limited too, according to his scandalous lifestyle. He can be prohibited from being at a certain place or meeting certain persons, or even transferred to another place in order to avoid scandals and help him reform.

The result of the Preliminary investigation may show that it is not the delict itself that is the most serious problem. The offender can be in such a mental state, that he is not able to perform his clerical duties. In this situation according to c. 1044 §2, 2° the ordinary can prohibit him working as priest. During this prohibition the ordinary can suggest or command him to undergo psycholo21 Calabrese, A., Diritto penale canonico, Città del Vaticano 1996. 138. Woestman, W. H., Ecclesiastical Sanctions and the Penal Process, Ottawa 2000. 64. Gabelline C., Rimedi penali e penitenze, Roma 2003. 39. Ayrinhac, H. A. - Lydon. P. J., Penal Legislation in the New Code of Canon Law, New Y ork 1936. 135.

22 Lombardia, P. - Arrieta, J. 1. (a cura di), Codice Di Diritto Canonico, Edizione Bilingue Commentata Voi 1-111, Roma 1986. can. 1340 (Lombardia, P.).