Folia Theologica et Canonica, Supplementum (2016)

Péter Artner, Preventive Disciplinary Measures Before the Application of a Penalty

PREVENTIVE DISCIPLINARY MEASURES BEFORE THE APPLICATION OF A PENALTY 43

II. Preliminary Investigation and Penal Process

Canon 1341 can be understood only in the light of the Preliminary Investigation prescribed in cc. 1717-1719, which has to be carried out before making any pastoral, disciplinary or penal action.10 * Whenever an ordinary has knowledge, which at least seems true, of a delict, he is to carefully inquire personally or through another suitable person about the facts, the circumstances and the imputability. The ordinary can obtain information regarding an offence by denunciation or by personal observation; or, by the publicity of the offence. Denunciation can be understood in a wide sense: it can be any kind of information that has made known to the ecclesial authority an actual offence or the possibility of an offence." The Preliminary Investigation is more than important, because the information gained helps the ordinary to make the proper decision: the more he knows, the better he can make his decision concerning the actions to be done. The Preliminary Investigation can be carried out by the ordinary or by anyone else. The duty of the investigator is to collect all the pertinent evidences. The beginning and the closure of the investigation are made by the decree of the ordinary. According to the result of the investigation at the time of closing the ordinary has to decide if it is necessary to start any process to impose or declare a penalty or use any other pastoral means considering the prescriptions of c. 1341.12

Therefore, if the ordinary decides that it is not necessary to initiate any kind of process, because the aims can be achieved by fraternal correction or reproof, or by any other methods of pastoral care, he has to use these resorts.13 Canon 1341 expressly defines that preference should be given to pastoral cares over applications of penalties, because the aim of the penalties can be duly reached by these means, too. This follows from the opinion of the teaching of the Church about the penalties: their final aim is the salvation of souls, and penalties are not to be used automatically but only when it is for the good of the offender and for the community.14

10 Marzoa, Á. - Miras, J. - Rodríguez-Ocaña, R. (ed.), Exegetical Commentary, IV/2. 1995 (Sanchis, J. M.).

" Lagges, P. R., Elements of the Preliminary Investigaton, in Dugan, P. M. (ed.), Advocacy Vademecum, Montréal 2006. 163.

12 Szuromi, Sz. A., Le particolarità dell’Indagine previa nel processo penale canonico, in Kowal, J. - Llobell, J. (a cura di), lustitia et iudicium. Studi di diritto matrimoniale e processuale canonico in onore di Antonio Stankiewicz, Città del Vaticano 2010. 2135-2143.

13 Di Mattia, G., Processo penale canonico e animazione pastorale, in Apollinaris 62 ( 1989) 488.

14 Sanchis, J. M„ L'indagine previa al Processo Penale, in Ius Ecclesiae 4 (1992) 517-519. Arru, C., Natura e fìnelità dei rimedi penali e delle penitenze con particolare riguardo ai provvedimenti cautelauri urgenti nel caso di accuse odiose nei confronti di ministri sacri, Roma 2002. 47.