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
94 KURT MARTENS have used this opportunity and mandated the establishment of such a council or office in all dioceses of its territory: the conferences of bishops of El Salvador, the Philippines, Paraguay and France.* 54 5. Requirement to Seek Reconsideration Prior to Making Hierarchical Recourse As a general rule, there is a requirement to seek reconsideration before proposing recourse:55 a person must seek the revocation or emendation of the decree from its author. This must be done in writing and the petition must be made within the peremptory period of ten useful days from the legitimate notification of the decree. When this petition is proposed, by that very fact a suspension of the execution of the decree is also understood to be requested. There are three exceptions to the requirement to seek reconsideration.56 (1) There is no need to seek reconsideration for recourse proposed to a bishop against decrees issued by authorities subject to him. In other words, if one feels aggrieved by a decree issued by the vicar general, an episcopal vicar, a pastor, or a delegate of the diocesan bishop, one can directly bring the case before the diocesan bishop without having to seek reconsideration from the author of the decree. (2) Likewise, there is no need to seek reconsideration for recourse proposed against a decree which decides a hierarchical recourse. The ratio legis behind this norm is that a procedure of hierarchical recourse must be resolved at one point and thus has to move forward: therefore one should not ask indefinitely for reconsideration. However, if the bishop gives the decision to decide the hierarchical recourse, one has to ask him for reconsideration of his decree before moving ahead. This is a logical exception to the exception and a consequence of the first exception, because no reconsideration has to be sought before going to him, as was pointed out in the first exception. (3) Finally, there is no need to seek reconsideration whenever the law orders a decree to be issued or an interested party legitimately proposes a petition or recourse to obtain a decree and the competent authority does not issue a decree within three months.57 landen België, in Torfs. R. (ed.), Recht op recht in dekerk, Leuven 2003. 11-101. Martens. K., Les procédures administratives dans l'Église catholique: les initiatives en droit particulier et le code de 1983, in Revue de droit canonique 55 (2005) 59-93. Martens, K., Procédures administratives, recours hiérarchiques et réconciliation, in Schouppe, J-P. (ed.). Vingt-cinq ans après le code. Le droit canon en Belgique, Bruxelles 2008. 257-279. 54 See, for an overview, Martens, K.. Protection of Rights: Experiences with Hierarchical Recourse and Possibilities for the Future, in The Jurist 69 (2009) 656-660. 55 CICCan. 1734 §§ 1-2. ’ 56 CIC Can. 1734 §3. 57 CIC Can. 57.
