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

HIERARCHICAL RECOURSE AS A DIALOGUE BETWEEN PARTICULAR CHURCH... 93

3. Parties Involved in the Procedure of Hierarchical Recourse

For a person to have standing to make recourse, he must claim to have been aggrieved by a decree for any just reason.5" Recourse is made to the immediate hierarchical superior of the author of the decree,50 51 but it may be proposed either directly to the hierarchical superior or indirectly to the author of the decree who must transmit the recourse immediately to the competent hierarchical superior. It is important here to note again that the superior of the author of the decree will be the judge of the case, not a tribunal exercising judicial power.

4. Reconciliation

As elsewhere in Book VII, the legislator encourages parties in an administrative controversy to reach an amicable solution. Conciliation is highly recommended in the process of hierarchical recourse: whenever a person considers himself or herself aggrieved by a decree, the legislator states it is particularly desirable that the person and the author of the decree avoid any contention and take care to seek an equitable solution by common counsel, possibly using the mediation and effort of wise persons to avoid or settle the controversy in a suitable way.52 There is even a possibility to organize this reconciliation in a more formal way: the conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind.53 Nevertheless, only a few conferences of bishops

50 CIC Can. 1737 § 1. In a number of cases, the question has been raised whether a group of persons or an association without juridic personality has standing to initiate and pursue hierarchical recourse. An authentic interpretation of the then Pontifical Council for the Interpretation of Legislative Texts (now simply the Pontifical Council for Legislative Texts) decided that a group of faithful, lacking juridical personality and even the recognitio envisioned in c. 299 § 3 cannot make hierarchical recourse against a decree of its own diocesan bishop as a group but hierarchical recourse can be made by the individual members of the faithful acting either singly or together, provided that they really have a grievance. Pontificia Commissio Codici Iuris Canonici Authentice Interpretando, Responsio ad proposition duhiwn (20 iun. 1987): AAS 80 (1988) 1818. See also Barrett, R. J„ The Non-Recognised Association and its Capacity to Act in Court, in Periodica 86 (1997) 677—711 and Periodica 87 (1998) 39-79.

51 CIC Can. 1737 § 1.

52 CIC Can. 1733 § 1

53 CIC Can. 1733, § 2. See Martens, K., Administrative Procedures in the Roman Catholic Church: Difficulties and Challenges, in Epltemerides Theotogiae Lovaniensis lb (2000) 354- 380. Martens, K., Im protection juridique dans l’Église: les tribunaux administratifs, la conciliation, et du Due Process, in Studia Canonica 36 (2002) 225-252. Martens, K.. Rechtsbeschenning in de rooms-kathoHeke Kerk met bijzondere aandacht voor de situatie in Neder-