Folia Theologica et Canonica, Supplementum (2016)
Péter Artner, Preventive Disciplinary Measures Before the Application of a Penalty
44 PETER ARTNER The outcome of the Preliminary Investigation can show that no delict was committed in the strict sense of the word.15 This can make the ordinary decide the use of only a warning. A warning is to be applied when the person is in the proximate occasion of committing a delict, or after an investigation, grave suspicion of having committed a delict has fallen, or at least the offence is reasonably presumable, but not completely proven.16 The aim of the warning usually is to notice the potential offender that his/her action is inappropriate, to help him/her to give up the action which can cause an offence, to improve his/her conduct, to prevent him/her from making an offence, namely to leave off his/her misdeed, and to avoid the possible relapse in the future. If the warning is issued after the person has committed the offence, then the primary goal of the warning is to protect the offender from further perpetration. A warning can be used when the person has committed an offence, but the degree of his/her responsibility is uncertain or diminished.17 III. Canonical Warnings Three different kinds of warnings (c. 1339 §1) can be distinguished: fraternal, paternal and canonical warning. Fraternal warning is given by one of the friends of the offender; paternal is given by the ordinary, especially by the diocesan bishop. In the latter case the warning is more serious, because it has greater influence: it is given with the authority of the superior. Neither of these has a canonical form, these are not official warnings. The third form of warning is the canonical warning, monitio canonica (c. 1347.) which is obligatory before the application of some punishments, especially before the imposition of ferendae sententiae censures.18 19 * In this situation the ordinary issues a decree or precept prescribing either the exemplary behavior demanded or the misconduct to be corrected. If the offender will not change his/her behavior within a set period but remains in contumacy, the ordinary will start a process to apply a penalty.1’ Whereas only one canonical warning is obligatory before a censure, it is practical to use all kind of warnings and more often even before other penalties. If the offender’s behavior is not because of wanting the bad, but only because of negligence, a warning can be enough to make him give up the misdeeds.2" 15 Beal, J. P., To Be or Not to Be, That is the Question. The Rights of the Accused in the Canonical Penal Process, in CLSA Proceedings 53 (1991) 84. 16 Sanchis, J. M., L’indagine previa aI Processo Penale, 526. 17 Ingels, G., Dismissal from the Clerical State: An Examination of the Pena! Process, in Studia Canonica 33 (1999) 171-172. 18 Lagges, P. R., Elements of the Preliminary Investigaton, 164. 19 Urru, A. G., Considerations on Imposing Penalties, 291. 29 Christ, J. J., Dispensation from Vindicative Penalties, Washington DC 1943. 8.
