Folia Theologica et Canonica, Supplementum (2016)
Péter Szabó, The Penal Legality and Guarantees of Self-Defense in Canon Law: CIC/CCEO
198 PÉTER SZABÓ III. From this short reflection the following conclusions can be drawn: 1. There is no doubt, that a greater flexibility to ensure for the Church an efficient means for self-defense is to be consider as useful from theoretical point of view. However, the way envisaged for this guarantee by can. 1399 is not really helpful. As we have seen, this nomi is controversial not so much because it is hardly compatible with the aphorism "nullum crimen", but rather because it is simply inefficient, and its goal can be fully achieved by penal precept23 as it is widely recognized in doctrine. Eastern canon law offers at least two other significant means of the penal efficiency and therefore of self-defense of the Church, namely a fuller discre- tionality in the remission of medicinal penalties and a remarkable supplemental responsibility of higher authorities to enforce the application of penal law. 2. What is more, according to some recognized authors, paradoxically it is can. 1399/CIC ’83 itself that involves some virtual devastating consequences for the efficiency of penal law system.23 24 3. It is true that rigid application of the principle in question is open to criticism even in secular doctrine,25 and obviously some aspects of it elaborated by state law systems cannot be applied uncritically in canon law. However, some new findings of the doctrine and first of all of the means and solutions offered by Eastern Code, lead us to doubt on opinions, past and present, that argue for the indispensability of can. 1399/CIC '83.26 In my opinion the "pan-criminal” solution detectable in can. 1399/CIC ’83 is not necessary at all. 23 Eastern Code allows a still wider use of penal precept than Latin one, foreseeing its application also for perpetual penalties, like for example deprivation of office, title, insignia, demotion to a lower grade, or deposition; cf. CCEOcan. 1406, § l[b]/CIC’83 can. 1319. 24 See: “I may be that c. 1399 deprives of their meaning the canonical provisions on exercising legislative and perceptive power in penal patter, thus rendering them useless. (...) On the other hand the norm favors a passive attitude by the authorities, since, in any case, a penalty can be applied if there is a particularly behavior that causes grave scandal”, Exegetical Commentary (ftn. 4), IV/1. 561 (Sanchis, J.): emphasise is added. See also: Marzoa, Á., Los delitos y las penas canónicas, in Manual de derecho canónico, Pamplona 1988. 694. 25 Cf. Marini, G., Nullum crimen, nulla poena sine lege, in Mortati, C. - Santoro-Passarelli, F. (a cura di), Enciclopedia del diritto, XXVIIII. Milano 1978. 559. Boscarelli, M., Nullum crimen sine lege, in Enciclopedia giuridica, XXXI. Roma 1990. 3. 26 “[il c. 2222/c. 1399] non può essere del tutto omesso, se non si vuol privare l’autorità ecclesiastica di uno strumento che, per quanto vagamente, può essere in qualche caso assolutamente necessario”, Ciprotti, P., Il diritto penale della Chiesa dopo il Concilio, in Atti del Congresso Internazionale di diritto canonico. La Chiesa dopo il Concilio, I. Milano 1917. 532; cf. Borras, A., Les sanctions dans l’Église. Commentaire des canons 1311-1399, Livre VI, Paris 1990. 24.
