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

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KURT MARTENS

of “double jurisdiction”: there exists both an ordinary judicial tribunal as well as an administrative tribunal. The latter is competent to hear and resolve conflicts deriving from administrative activity. The current canonical model is a mix of the first and the third model; there is a hierarchical recourse procedure; but ultimately an administrative tribunal will make the final decision. This mixed model is based upon Italian administrative law.

When we consider again the two principles relevant for our topic, it is obvious that they do not distinguish between the three possible models to protect against arbitrary or abusive exercise of administrative or executive power and authority. From that perspective too, caution is needed when looking at the principles for the revision of the Code of Canon Law and their application in the law.

4. The appellatio extrajudicialis

It should be noted that for a long time an efficient system of protection of rights existed in canon law, namely the extrajudicial appeal. In the extrajudicial appeal an aggrieved party could appeal an administrative decision to a judge or tribunal. This is why it is called an extrajudicial appeal: the aggrieved party is appealing an administrative decision or a decision emanating from executive power to the judge or the tribunal, and was not appealing a judicial decision to the judge or the tribunal.32 This appellatio extrajudicialis was formally abrogated in 1908 by the apostolic constitution Sapienti consilio on the reform of the Roman Curia: article 16 of the lex propria of the Roman Rota and the Apostolic Signatura stipulated that appeal against decisions of ordinaries that are not judicial decisions is possible only to the Roman congregations and not to the Roman Rota. At that moment, the model of “single jurisdiction” was replaced with the model of a “superior-judge” in the canonical system.33 Not everyone was pleased with this evolution or convinced of the necessity and effectiveness of the change: the apostolic constitution Sapienti consilio and its related documents were interpreted in such a way by jurisprudence and doctrine that the effect of the abrogation of the appellatio extrajudicialis was at least neutralized.34

32 On the appellatio extrajudicialis, see Schmìtz, H., Appellatio extraiudicialis. Entwicklungslinien einer kirchlichen Gerichtsbarkeit über die Verwaltung im Zeitalter der klassischen Kanonistik (1140-1348) [Münchener Theologische Studien III; Kanonistische Abteilung XXIX], München 1970.

33 Gordon, I., De iustitia administrativa ecclesiastica, 280.

34 Gordon, I., De iustitia administrativa ecclesiastica, 284—286. Gordon quotes the canon lawyers B. Ojetti, A. Mónin, J. Laurentio and F. X. Wernz. Ojetti makes a distinction between a violation of the law (ius) and a violation of an interest (interesse). In the first case the tribunal of the metropolitan or the Roman Rota will be competent, in the latter the Roman Congregations will be competent. The doctrine of Ojetti is applied in various Rotai decisions.