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... 89 must be open, so that it is clear when a decision is made, its context is clearly understood. This means that interested parties have the right to know the elements that lead to the decision, with the restriction however that other rights, such as the right to privacy and the obligation to maintain confidentiality, must be respected too, and that therefore the publicity might be somehow limited. The principle of participation is a second principle. It means that prior to the issuance of a singular administrative act, the faithful are consulted and have some form of input, so that the singular administrative act is issued with knowledge of all elements. The administrative authority must inform the directly interested parties about the intention to issue a singular administrative act and give, as far as possible, the proofs and documentation, and the interested parties must have an opportunity to respond before the singular administrative act is issued. This principle is intimately connected with the previous one: the publicity - that is, the communication of all relevant elements, such as the intention to issue the administrative act, the right to examine the documentation - makes the participation possible. Pope Francis, in his apostolic exhortation Evangelii gaudium, gives an important message about procedures and consultation: “In his mission of fostering a dynamic, open and missionary communion, [the bishop] will have to encourage and develop the means of participation proposed in the Code of Canon Law, and other forms of pastoral dialogue, out of a desire to listen to everyone and not simply to those who would tell him what he would like to hear."43 A third principle is the principle of objectivity. The administrative activity is geared towards the general or public interests, and therefore, the final decision must be based on objective elements and not on personal preferences. Impartiality is a key issue here. The principle of motivation is a fourth principle: the reasons for the singular administrative act must be expressed (i.e. canon 51), because of justice and rationality. Such expression of the reasons serves a double practical goal: on the one hand, knowing the reasons for a singular administrative act can lead to a better understanding and acceptance of such act. On the other hand, such knowledge can also serve the purpose of challenging the singular administrative act: an interested party can use the reasons invoked to challenge the decision. A fifth principle is the principle of the integrality of the decision: when the decision is made, all the elements, collected during the instructional phase, must be present and taken into account. In case of the relegation of a church to profane but not sordid use for other grave causes than the 4 4-’ Franciscus, Adh.ap.postsyn. Evangelii gaudium (24 nov. 2013): Origins 43/27-28 (Dec. 5 and 12, 2013)427, n. 31.
