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

HIERARCHICAL RECOURSE AS A DIALOGUE BETWEEN PARTICULAR CHURCH... 99

in 1968 for a period of five years,“2 were in effect until the new lex propria, promulgated in 2008, became effective.“’

The Apostolic Signatura is competent to judge only whether or not the challenged decision or singular administrative act is legitimate, or, in other words, whether that decision has violated the law, either in procedendo or in decernen- do.M This constitutes the main difference from the procedure of hierarchical recourse: whereas the hierarchical superior can also look at the merits of the case, the Apostolic Signatura as supreme administrative tribunal is limited to a control of the legitimacy of the challenged decision and thus cannot look at the merits of the case. Of course, in practice it will sometimes be difficult to distinguish between a violation in decernendo and the merits of the case.“5

The recourse procedure before the Apostolic Signatura contains a number of steps: it starts with a petition for recourse, a first phase during which the admissibility of the petition is checked, and a second phase during which the recourse, if accepted or admitted, is dealt with. We will not deal with the procedure in detail, as that would lead us too far from our proper topic. When we return to the models presented at the beginning of this contribution, we come to the conclusion that at the very last moment in the procedure, the model of hierarchical recourse is changed into a model of double jurisdiction: a specialized tribunal, that is an administrative tribunal, will now make the final judgment in the case.

III. Dialogue Between Particular and Universal Church?

The decree Christus Dominus concerning the pastoral office of bishops, shows what the role is of the various departments of the Roman Curia:*6

“9. In the exercise of his supreme, full and immediate authority over the entire church, the Roman pontiff makes use of the various departments of the Roman

82 Nomme spéciales in Supremo Tribunali Signaturae Apostolimé ad experimentum servandae post Const. Ap. Pauli VI «Regimini Ecclesiae universae» (23 mart. 1968): Ochoa, X. (ed.), Leges Ecclesiaepost Codicein iuris canonici editae. III. Romae 1972. 5321-5332.

83 Benedictus XVI, M.P. Antiqua ordinatione (21 iun. 2008): AAS 100 (2008) 513-538 (hereafter cited as Lex propria). See also Bonnet, P. A. - Gullo, C. (ed). La Lex Propria del S.T. della Segnatura Apostolica (Studi Giuridici LXXXIX), Città del Vaticano 2010.

84 Lexpropria, Art. 34 § I. Signatura Apostolica cognoscit de recursibus, intra terminum peremp- torium sixaginta dierum utilium interposais, adversus actus administrativos singuläres sive a Dicasteriis Curiae Romanae latos sive ab ipsis probates, quoties contendatur nutn actus impug- natus legem aliquam in decernendo vel in procedendo violaverit.

85 On this difficulty, see Punderson, J. R„ Hierarchical Recourse to the Holy See, 40.

86 Cone. Vaticanian II, Deer. Christus Dominus, 9 (28 oct. 1965): AAS 58 ( 1966) 676-677. English translation from Tanner, N. P. (ed.), Decrees of the Ecumenical Councils, II. London-Washing-