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 47

after citing the accused can exclude him/her from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist.26

Members of religious institutes, depending on their special lifestyle (living in a community) can be punished with different disciplinary measures which cannot be applied to diocesan clergy.

Not only at the application of the disciplinary-preventive measures, but even during the application of the real penalties, the principle of gradience has to be kept. Both of them are to be established only so far as they are really necessary for the better keeping of ecclesial discipline. First smaller and more easily applicable disciplinary measures or penalties, and then the more severe ones are to be used. First e.g. a warning and then a rebuke, and after that the restriction of rights, or first an expiatory penalty for a determinate period is to be used, which can be extended, if necessary, and after that, deprivations or full or partial suspensions. Excommunication, interdict and dismissal from the clerical state are considered as the most serious penalties so these may be applied only when it is absolutely necessary and only as last resort.27

Even the offender is considered guilty the ordinary (or judge) has the possibility not to impose any penalty in some cases, e.g., if the offender has reformed and repaired the scandal during the process or if he/she has been or will be punished sufficiently by civil authority.

The competent authority in investigating the circumstances of the offence and the application (or non-application) of the penalty, may have other responsibilities. Even in those cases when no penalties were imposed or declared there may remain some effects which in some situations are beyond the power of the authority that applied (or did not apply) the penal sanction(s). These disciplinary consequences are not “attached penalties”; they are concerned less with the reform of the person who committed the delict, but are applied for the protection of an office, function or dignity, i.e. the protection of the ecclesial community.

According to c. 1718 §4, the ordinary has to make a decision about the question of damages. He can also prescribe the offender to restore the damages, or the detriments, and in this way the processes can be avoided.28

“ Griffin, B., Canon 1722: Imposition of Leave Against the Accused, in Espelage, J. A. (ed.), CLSA Advisory’ Opinions 1984-1993 (2002) 488.

27 Cox, C. A., Process Involving Irregularities and Impediments, ¡n Calvo, R. R. - Klinger, J. N.

(ed.), Clergy Procedural Handbook, Washington DC 2004. 190. a LOdicke, K. (Hrsg.), Miinsterischer Kommentár, Can. 1718/6 (Lüdicke, K.).