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... 87

The abrogation of the appellatici extrajudicialis was once again confirmed in canon 1601 of the Code of Canon Law of 1917.35 36 37 38 39 This was necessary not only for the purpose of codification of the canon law, but also because of opposition to and non-acceptance of the abrogation of the appellatici extrajudicialis. Even after the promulgation of the 1917 Code, opposition continued56; hence an authentic interpretation of May 22. 1923, issued by the then Pontifical Commission for the Authentic Interpretation of the Canons of the Code, confirmed once more the abrogation of the appellatio extrajudicialis.57

It is clear that the model of a “superior-judge” has been used for only about 100 years in the canonical system and has been heavily inspired by civil systems whereas the model of the “single jurisdiction”, better known as the appellatio extrajudicialis, has a solid canonical tradition of more than 800 years of experience.58

II. Hierarchical Recourse According to the Code of Canon Law

The norms on hierarchical recourse (cc. 1732-1739) constitute a limited realization of the norms on administrative procedures, proposed during the Code revision process.5'1 The system as such can be categorized as a system in which the superior of the administrative authority who exercised administrative power through a singular administrative decree controls the latter. In other words, the superior is the judge, and not a tribunal exercising judicial power. The control of the exercise of administrative or executive power is kept “in-house”. The overview will show the main characteristics of such procedure.

35 CIC (1917) Can. 1601 - Contra Ordinariorum decreta non datur appellatio seu recursus ad Sac- ram Rotam; sed de eiusmodi recursibus exclusive cognoscunt Sacrae Congregationes.

36 See Gordon, I., De iustitia administrativet ecclesiastica, 290-295. This author claims that there are two opinions in the canonical doctrine: according to one theory, the appellatio extraiudicia- lis is abrogated, while another theory maintains that the appellatio extraiudicialis continues to exist under another name and form, namely the recursus.

37 Pontificia Commissio ad Codicis canones authentice interpretandos, Dubia saluta ab emo prue side commissions (22 mai. 1923): AAS 16 ( 1924) 251. As a result, the Roman Rota declared itself incompetent to hear a case of a canon against his bishop, based on canons 1557 § 2 n. 1 and 1599 § 2 (de calumnia et de damnis). Cf. SRR coram Parrillo (30 apr. 1923): AAS 15 (1923) 296-302 and Regatillo, E. F., Interpretatio et iurisprudentia Codicis luris Calumici, Santander 1953.623-624.

38 De Paolis, V., Il contenzioso amministrativo. Via amministrativa e via giudiziale. Controllo di merito e controllo di legittimità, in Periodica 97 (2008) 455-505.

39 See Martens, K., The Law that Never Was, 178-222.