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
96 KURT MARTENS 7. Suspension of the Execution of the Impugned Decree during Hierarchical Recourse An important question is whether recourse against a singular administrative decree suspends the execution of foresaid decree. The answer to that question is, in principle, negative. Only in a limited number of cases would hierarchical recourse suspend the execution of the impugned decree. It is interesting to note that such was not the case in the very first draft on administrative recourse: here recourse would have automatically suspended the execution of the decree, except in a few cases.62 The petition for reconsideration is presumed to include a petition for the suspension of the execution of the decree.63 If the author of the decree has not decreed the suspension of the execution within ten days after receiving the petition for reconsideration, an interim suspension can be sought from his hierarchical superior who can decree a suspension only for grave reasons and always cautiously so that the salvation of souls suffers no harm.64 If the hierarchical superior has thus suspended the execution of the decree and recourse is proposed afterwards, the superior who must deal with the recourse is to decide whether the suspension must be confirmed or revoked when the recourse is actually considered.65 If no recourse is proposed against the decree within the established time limit, the interim suspension of the execution given by the author of the decree or his hierarchical superior ceases by that very fact.66 Recourse automatically, i.e. by the law itself, suspends the execution of a decree of dismissal of a member of a religious institute (c. 700), a decree of dismissal of a member of a secular institute (c. 729), and a decree of dismissal of a member of a society of apostolic life (c. 746). Moreover, recourse against an extrajudicial decree which imposes or declares a canonical sanction or penalty will also have a suspensive effect (c. 1353). When a pastor is removed or transferred involuntarily and has recourse against the decree of removal or transfer, the recourse has a suspensive effect to the extent that a new pastor cannot be appointed while the recourse is pending, but the removed or transferred pastor must likewise abstain from exercising the office of pastor.67 62 Martens, K., Rechtsbescherming in de Kerk. Ontwikkeling en aanwending van rechtsmiddelen tegen overheidsbeslissingen in de rooms-katholieke Kerk, Brussels 2007. 80. 63 CICCan. 1736 § 1. M CICCan. 1736 §2. 65 CIC Can. 1736 §3. 66 CICCan. 1736 §4. 67 Beal, J., Hierarchical Recourse, 102. Mendonça, A., The Effect of the Recourse Against the Decree of Removal of a Parish Priest, in Studia Canonica 25 (1991) 139-153. Beal, I. P. -Co- RiDEN, J. A. - Green, T. J. (ed.), New Commentary on the Code of Canon Law, New York-Mah- wah, NJ. 2000. 1831 (Paprocki, Th. J.). Beal refers to a decision of the Pontifical Commission
