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

IIIERARCHICAL RECOURSE AS A DIALOGUE BETWEEN PARTICULAR CHURCH.. 101

tation of Pastor bonus, some nuance is needed: control is not the right term to use, it is better to speak of communion and exchange.

However, one also needs to consider that the procedure is not only concerned about just following the law. Ultimately, the salvation of souls is the supreme law (i.e. c. 1752). From that perspective, one can also understand the emphasis put on reconciliation between the author of a decree and the recurrent(s) [c. 1733] and the need to avoid, as much as possible, conflicts. This approach is typical for the overall approach of Book VII.

When trying to explain the mechanics of the system in a precise way, often difficulties are encountered, especially in an American context, where law is used in an often very litigious way. In early 2011, a number of American dioceses were confronted with for them unfavorable decisions of the Congregation for Clergy in recourse against parish closures and reduction of churches to profane use. The language used by parishioners in those cases unfortunately reflects more the American mentality than the reality of canon law.

2. Communication between Bishop or Superior and the Competent Dicastery

While letters from a dicastery of the Roman Curia may sometimes be seen as inconvenient or even bothersome, it is important not to ignore them and to answer in an appropriate way, especially in cases of hierarchical recourse. The competent dicastery will contact the diocesan bishop (or the superior) after having received the recourse and admitting the recourse to examination. That simply means that the recurrent has respected the procedural norms and the peremptory time limits; therefore the dicastery is obliged to examine the recourse and to formulate a reply to the complaint.

What needs to be kept in mind and what is crucial in the procedure at this point is that the dicastery received a petition for recourse from a recurrent, with the information provided by the same recurrent. The dicastery has no other information at that point. The letter that is typically sent to the bishop (or superior) is a letter with a double request, namely to send the (pertinent) acta of the case to the dicastery, together with the votum of the bishop (or superior). Both (sets of) documents are equally important. The acta are important because they typically contain all the information that was needed for and justifies the decree that is now challenged. The votum gives the bishop (or the superior) the opportunity to explain the case - if needed, at great length - and to propose to the dicastery the desired outcome.

While this seems simple, it is often overlooked and important information is omitted. The votum should be written from the perspective of a good journalist, who tries to explain to his readers, unfamiliar with the case, what has happened and how the situation has evolved. In other words, it is important to cover es-