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
88 KURT MARTENS 1. Prior to Recourse: the Procedure before any Contention Before anyone even thinks of making recourse, vigilance and supervision can be exercised in a way to prevent conflicts. This non-contentious administrative procedure - in French the procédure administrative non-contentieuse - is called that way because there is no conflict yet. When the decision is made and formalized through a singular administrative act, only curative intervention can solve possible problems. The non-contentious administrative procedure is therefore in essence a preventive procedure. The successive steps of this procedure must lead to the issuance of a just and appropriate administrative act and the decision must be just and reasonable.40 a. Non-contentious Administrative Procedure in Canon Law During the Code revision process, a special law on administrative procedures, including the non-contentious procedure, was prepared. Only at the end of this process, it was decided not to promulgate a special law, but to insert the various canons in the appropriate parts of the new code of canon law. However, such was done only in a minimal way.41 In practice, observance of canons 50-51 will be sufficient, although in some cases, such as in the case of canon 515 § 2, other requirements must be fulfilled. b. Principles Governing the Procedure Canonical doctrine has developed ten principles that govern the issuance of a singular administrative act.42 Such principles could be seen as general principles of law, as envisioned by canon 19. The first principle is the principle of publicity. the administrative activity is not a private activity, but is public in nature. Therefore, the process leading to the singular administrative act as a general rule 40 Miras, J. - Canosa, J. - Baura, E., Compendio di diritto amministrativo canonico (Subsidia canonica 4), Roma 2009. 174: “Per procedimento amministrativo (o semplicemente procedimento) si intende la successione degli atti orientati all’emissione di un atto amministrativo giusto e opportuno. Mediante detto procedimento si svolge la necessaria attività di valutazione affinché la decisione sia giusta, ragionevole e risulti adeguata.” 41 Martens, K., The Law that Never Was, 178-222. Miras, J. - Canosa, J. - Baura, E., Compendio di diritto amministrativo canonico, 175. 42 See Miras, J. - Canosa, J. - Baura, E., Compendio di diritto amministrativo canonico, 177— 182, where the ten principles are listed and explained in detail. Our overview is obviously based upon the outline provided for by these authors. It should be pointed out that such principles also exist in comparable civil systems, such as in Italy, France or Belgium. These general principles are usually not found in legislation, but were developed by (administrative) jurisprudence, in particular by the highest administrative tribunals. For some literature, e.g., on the development in Belgian law, see Jaumotte, J., Les principes généraux du droit administratif à travers la jurisprudence administrative, in Blero, B. (ed.), Le Conseil d’Etat de Belgique cinquante ans après sa création (1946-1996), Brussels 1999. 593-697.
