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
102 KURT MARTENS sential questions (who, what, when, why, where and how), as we pointed out earlier. The bishop should also in his votimi underscore and explain any particular or unusual circumstances that led to the decision that is now being challenged; he cannot assume that the dicastery knows everything. An example can clarify this important nuance. We all know that a bishop can relegate a church to profane but not sordid use, provided there are grave causes that suggest such action, and after having heard the presbyteral council and with the consent of those who legitimately claim rights for themselves in the church, provided of course that the good of souls suffers no detriment thereby (i.e. c. 1222 § 2). It is the bishop who will first come to the conclusion that these grave causes are present. Financial reasons can constitute such grave causes. It will, however, not be sufficient for the bishop to simply say that financial reasons constitute in this case the grave cause required by the law and only send in the balance sheet of the parish that owns the building. The bishop will have to explain what the balance sheet means in these particular circumstances; he cannot expect the dicastery to understand the balance sheet and be an expert in accounting. The balance sheet illustrates and supports the explanation given by the bishop in his votum. Such an explanation is, of course, an example of that dialogue between the particular Church and the universal Church. 3 3. Role of the Recurrent and Advocate/Procurator The advocate/procurator of a recurrent must look after the interests of the recurrent. That does not mean that the advocate/procurator plays the same role as in civil litigation, and certainly not as in the American court system. Unfortunately, the tone that is often used by such advocates is not reconciliatory, but more adversarial in nature and sometimes simply insulting to the diocesan bishop whose decree is being challenged. It does not cost anything to be a gentleman, and will also help the recurrent. The advocate/procurator must always keep an eye on the bigger picture, and be willing to compromise. It happens that a recourse procedure does not lead to the hoped for result. The priest who was suspended or not by a decree of the bishop is not being restored to ministry by the competent dicastery, but the tone of the bishop towards the priest has changed. It may not be in the best interest of the recurrent to have recourse to the Supreme Tribunal of the Apostolic Signatura. because such a step may only confirm both parties in their positions. Moreover, it is the task of the advocate/procurator to carefully study the decree of the dicastery rejecting the recourse, and to consider the options, including the option not to make recourse to the Signatura. It requires an advocate/procurator sometimes to convince the recurrent that further procedural steps may be counterproductive or even simply a waste of time and money.
