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... 91

During the instruction, the necessary documentation and information will be collected and studied. Basically, elements such as persons involved, facts, applicable law and available means will help prepare for the decision and will ultimately result in the singular administrative act. From this perspective, canon 50 is important: the administrative authority must seek out the necessary information and proofs and, insofar as possible, hear those whose rights can be injured.

Once the phase of instruction is completed, the competent administrative authority must arrive at a decision. This is the third and final phase of the procedure: the conclusion. The elements of the instructional phase will be considered as a whole. This is important, because they will be used to express the reasons for the decision, as required by canon 51. Ultimately, once the decision is made, a text will be written. A logical consistence must exist between the reasons and the decision. While the form is free, it is required that the singular administrative act is given in writing. This requirement is further implemented by the signature of the administrative authority at the end of the written text. It is important to note that, in line with the jurisprudence of the Supreme Tribunal of the Apostolic Signatura, in cases of dismissal of a religious, the decree must indicate the right which the dismissed possesses to make recourse to the competent authority within ten days from receiving notification.46

d. Advice, Permission and Approval

In some cases, the intervention of other authorities or bodies is required for an administrative act to be valid. In this context, a distinction can be made between advice, permission, and approval. In case the law requires advice of another authority or body, the decision cannot be made without prior advice. When a decision is made prior to the advice, the administrative act is invalid. An example of such prior advice is found in canon 515 § 2: a diocesan bishop cannot erect, suppress, or alter parishes, unless he has heard the presbyteral council. Prior advice means that the decision making authority makes a decision after receiving the advice. In the case of parish reorganizations, the bishop is to take the presbyteral council seriously: the council must give advice, not rubberstamp a decision that was already made.47 When permission is required, the administrative autho46 CIC Can. 700; see also Supreme Tribunal of the Apostolic Signatura, Definitive sentence of the College (20 January 1986): Ministerium tustitiae. Jurisprudence of the Supreme Tribunal of the Apostolic Signatura. Official Latin with English Translation (transi. Daniel, W. L.), Montréal 2011. 111-136, here at 124. Supreme Tribunal of the Apostolic Signatura, Definitive decree of the College (26 April 1986): Ministerium lustitiae, 140-157, here at 147-148.

47 Paprocki, Th. J., Parish Closings and Administrative Recourse to the Apostolic See: Recent Experiences of the Archdiocese of Chicago, in The Jurist 55 (1995) 875-896. The author writes (at 894): “In any proposed establishment, closing, or significant alteration of a parish or relegation of the church to profane use, the Presbyteral Council must be properly convoked in order