Folia Theologica et Canonica 6. 28/20 (2017)

IUS CANONICUM - Kurt Martens, Hierarchical recourse as a dialogue between particular church and universal Church? Difficulties, challenges and opportunities

FOLIA THEOLOGICA ET CANONICA (2017) 77-103

Kurt Martens

HIERARCHICAL RECOURSE AS A DIALOGUE

BETWEEN PARTICULAR CHURCH AND UNIVERSAL CHURCH?

DIFFICULTIES, CHALLENGES AND OPPORTUNITIES*

Introduction; I. A General Catalogue and Some Historical Notions, /. Toward a Better Protection of Rights? The Code Revision Process, 2. Various Powers in Canon Law: From Societas Perfecta to the I9B3 Code of Canon Law, 3. Three Possible Models, 4. The appellatio extrajudicia- lis; II. Hierarchical Recourse According to the Code of Canon Law, /. Prior to Recourse: the Procedure before any Contention, a. Non-contentious Administrative Procedure in Canon Law, b. Principles Governing the Procedure, c. Phases of the Procedure, d. Advice, Permission and Approval, 2. Scope of the Procedure of Hierarchical Recourse, 3. Parties Involved in the Procedure of Hierarchical Recourse, 4. Reconciliation, 5. Requirement to Seek Reconsideration Prior to Making Hierarchical Recourse, 6. Time Limits for Making Recourse, 7. Suspension of the Execution of the Impugned Decree during Hierarchical Recourse, S. Prosecution and Resolution of the Hierarchical Recourse, 9. Prosecution of Recourse before the Dicasteries of the Roman Curia, 10. The Second Section of the Apostolic Signatura-, III. Dialogue Between Particular and Universal Church?, /. Exercise of Supervision versus Protection of Rights, 2. Communication between Bishop or Superior and the Competent Dicastery, 3. Role of the Recurrent and Advocate/Procurator, 4. Effects of the Recourse-, CONCLUSION

Introduction

Some years ago, a number of dioceses in the United States and elsewhere saw unfavorable decrees return from the Congregation for the Clergy, overturning certain decisions in cases of parish restructuring. Headlines in various newspapers looked very spectacular, such as “U.S. Catholics win rare victories on church closings” (USA Today, March 5, 2011), or “Vatican congregation says 13 Cleveland parishes must reopen” (National Catholic Reporter, March 8, 2012). It goes without saying that the bishops concerned were not overly happy with these Roman decisions overturning their decrees. On the other hand, the language used by certain advocacy groups in these cases reflected the litigious mindset typical for part of the American culture. However, both failed to understand the nature of the hierarchical recourse procedure, in particular in what it does and does not.

* Revised text of the conference given at the 17“ Giornata di Studio “Questioni attuali nel campo del diritto processuale canonico e degli atti amministrativi” at the Istituto Postgraduale di Diritto Canonico of the Università Cattolica Pázmány Péter (February 8'" 2016; Budapest. Hungary).