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
90 KURT MARTENS inability to use the church for divine worship (canon 1222 § 2), the diocesan bishop must hear the presbyteral council, obtain the consent of those who legitimately claim rights for themselves in the church, and must guarantee that the good of souls suffers no detriment thereby. The decision must take into account the three elements or requirements: there is no option to separate them. The principle of material truth is listed as a sixth principle: the decision must take into account all the elements gathered by the authority responsible for the decision, as explained before. Therefore, the elements must correspond with the reality. Prior to the issuance of the singular administrative act, these elements on which the singular administrative act will be founded must be verihed. The seventh principle is the principle of adequate formality: formalities in the procedure are to be limited to those formalities that are strictly needed and that are sufficient to guarantee the participation of those lawfully interested and to constitute proof for what is being done. The principle of swiftness, the eight principle, means that delays in the administrative activity must be avoided. Such principle is realized in the institute of fixed and short time limits to act. This principle is linked to the previous one: short procedures go together with a limited formalization, so that excessive bureaucracy is avoided. The ninth principle is the principle of formal stability of the decision, meaning that, once a singular administrative act is issued, the decision cannot be simply revoked without serious reasons. Last but not least, the tenth principle recognizes the ordinary right of every interested person to have recourse, first by asking the author of the decree for reconsideration, and later through formal hierarchical recourse to the higher administrative authority, and finally through contentious-administrative recourse to the competent tribunal, that is, the Supreme Tribunal of the Apostolic Signatura. c. Phases of the Procedure Likewise, canonical doctrine has distinguished three phases in the procedure to arrive at a singular administrative act: the initiative to start the procedure, the instruction, and the conclusion of the procedure.44 The initiative to start the procedure to arrive at a singular administrative act can come from the administrative authority or by the interested party. In case the interested party requests the singular administrative act, the administrative authority will be required to act or, in case of inaction, the response is presumed to be negative after the passing of three months, and that opens then further possibilities for hierarchical recourse.45 44 Miras, J. - Canosa, J. - Baura, E., Compendio di diritto amministrativo canonico, 182-195. 45 CIC Can. 57.
