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. . 97

8. Prosecution and Resolution of the Hierarchical Recourse

Hierarchical recourse against a singular administrative act must be submitted in writing“ and can be proposed before the author of the decree who must transmit it immediately to the competent hierarchical superior.61' The one having recourse or his advocate should work “like a good journalist and cover the essential questions (who, what, when, why, where and how).”™ Moreover, a copy of the decree being impugned should be included. Relevant documentation that is in the possession of the petitioner should be bundled, indexed and added to the petition as well. Finally, relevant documentation or evidence that is not in the possession of the petitioner should be identified so that the superior can seek that evidence.* 68 * * 71

The person making recourse always has the right to use an advocate or procurator.72 73 However, useless delays are to be avoided. A legal representative is to be appointed ex officio if the person making recourse lacks one and the superior thinks it is necessary. Nevertheless, the superior can always order the person making recourse to be present in order to be questioned.

The superior who deals with the recourse can not only confirm the decree or declare it invalid but also rescind or revoke it or, if it seems more expedient to him, emend, replace, or modify it.” In other words, the superior not only judges the violation of the law, but also the merits of the case.

for the Interpretation of the Decrees of Vatican II to argue that recourse against a decree of removal of a pastor has a suspensive effect. The Commission had used an analogy with c. 2146 § 3 CIC to respond positively. See: Pontifical Commission for the Interpretation of the Decrees of Vatican II. Response to proposed doubts, July 1, 1971 : AAS 63 (1971) 860, n° 2. However, the dubium concerned art. 106 of Regimini Ecclesiae Universae and the question whether a recourse to the Supreme Tribunal of the Apostolic Signatura against a decision of a Sacred Congregation in the procedure of the removal of a pastor had a suspensive effect or not. The legislator. when promulgating the 1983 code, clearly chose a system with a restrictive use of automatic suspension of the execution of decrees in the case of hierarchical recourse. The removal of a pastor was not included in this list, therefore, it is questionable whether the response of 1971 is still valid.

68 Beal, J., Hierarchical Recourse, 103.

<'•> CIC Can. 1737 § I.

711 Punderson, J. R., Hierarchical Recourse to the Holy See: Theory and Practice, in CLSA Proceedings 62 (2000) 19-47, here at 23.

71 Beal, J., Hierarchical Recourse, 103.

72 CIC Can. 1738.

73 CIC Can. 1739.