|Processes » Trials in General|
|Canon 1400.||§1 The objects of a trial are:
1° to pursue or vindicate the rights of physical or juridical persons, or to declare juridical facts;
2° to impose or to declare penalties in regard to offences.
§2 Disputes arising from an act of administrative power, however, can be referred only to the Superior or to an administrative tribunal.
|Canon 1401.||The Church has its own and exclusive right to judge:
1° cases which refer to matters which are spiritual or linked with the spiritual;
2° the violation of ecclesiastical laws and whatever contains an element of sin, to determine guilt and impose ecclesiastical penalties.
|Canon 1402.||All tribunals of the Church are governed by the canons which follow, without prejudice to the norms of the tribunals of the Apostolic See.|
|Canon 1403.||§1 Cases for the canonisation of the Servants of God are governed by special pontifical law.
§2 The provisions of this Code are also applied to these cases whenever the special pontifical law remits an issue to the universal law, or whenever norms are involved which of their very nature apply also to these cases.
|Processes » Trials in General » The Competent Forum|
|Canon 1404.||The First See is judged by no one.|
|Canon 1405.||§1 In the cases mentioned in can. 1401, the Roman Pontiff alone has the right to judge:
1° Heads of State;
3° Legates of the Apostolic See and, in penal cases, Bishops
4° other cases which he has reserved to himself.
§2 A judge cannot review an act or instrument which the RomanPontiff has specifically confirmed, except by his prior mandate.
§3 It is reserved to the Roman Rota to judge:
1° Bishops in contentious cases, without prejudice to can. 1419 §2;
2° the Abbot primate or the Abbot superior of a monastic congregation, and the supreme Moderator of a religious institute of pontifical right;
3° dioceses and other ecclesiastical persons, physical or juridical, which have no
Superior other than the Roman Pontiff.
|Canon 1406.||§1 If the provision of can. 1404 is violated, the acts and decisions are invalid.
§2 In the cases mentioned in can. 1405, the non-competence of other judges is absolute.
|Canon 1407.||§1 No one can be brought to trial in first instance except before a judge who is competent on the basis of one of the titles determined in can. 1408--1414.
§2 The non-competence of a judge who has none of these titles is described as relative.
§3 The plaintiff follows the forum of the respondent. If the respondent has more than one forum, the plaintiff may opt for any one of them.
|Canon 1408.||Anyone can be brought to trial before the tribunal of domicile or quasi-domicile.|
|Canon 1409.||§1 A person who has not even a quasi-domicile has a forum in the place of actual residence.
§2 A person whose domicile, quasi-domicile or place of actual residence is unknown, can be brought to trial in the forum of the plaintiff, provided no other lawful forum is available.
|Canon 1410.||Competence by reason of subject matter means that a party can be brought to trial before the tribunal of the place where the subject matter of the litigation is located, whenever the action concerns that subject matter directly, or when it is an action for the recovery of possession.|
|Canon 1411.||§1 Competence by reason of contract means that a party can be brought to trial before the tribunal of the place in which the contract was made or must be fulfilled, unless the parties mutually agree to choose another tribunal.
§2 If the case concerns obligations which arise from some other title, the party can be brought to trial before the tribunal of the place in which the obligation arose or in which it is to be fulfilled.
|Canon 1412.||A person accused in a penal case can, even though absent, be brought to trial before the tribunal of the place in which the offence was committed.|
|Canon 1413.||A party can be brought to trial:
1° in cases concerning administration, before the tribunal of the place in which the administration was exercised;
2° in cases concerning inheritances or pious legacies, before the tribunal of the last domicile or quasi-domicile or residence of the person whose inheritance or pious legacy is at issue, in accordance with the norms of can. 1408-1409. If, however, only the execution of the legacy is involved, the ordinary norms of competence are to be followed.
|Canon 1414.||Competence by reason of connection means that cases which are inter-connected can be heard by one and the same tribunal and in the same process, unless this is prevented by a provision of the law.|
|Canon 1415.||Competence by reason of prior summons means that, if two or more tribunals are equally competent, the tribunal which has first lawfully summoned the respondent has the right to hear the case.|
|Canon 1416.||A conflict of competence between tribunals subject to the same appeal tribunal is to be resolved by the latter tribunal. If they are not subject to the same appeal tribunal, the conflict is to be settled by the Apostolic Signatura.|
|Processes » Trials in General » Different Grades and Kinds of Tribunals|
|Canon 1417.||§1 Because of the primacy of the Roman Pontiff, any of the faithful may either refer their case to, or introduce it before, the Holy See, whether the case be contentious or penal. They may do so at any grade of trial or at any stage of the suit.
§2 Apart from the case of an appeal, a referral to the Apostolic See does not suspend the exercise of jurisdiction of a judge who has already begun to hear a case. The judge can, therefore, continue with the trial up to the definitive judgement, unless the
Apostolic See has indicated to him that it has reserved the case to itself.
|Canon 1418.||Every tribunal has the right to call on other tribunals for assistance in instructing a case or in communicating acts.|
|Processes » Trials in General » Different Grades and Kinds of Tribunals » The tribunal of the first instance » The judge|
|Canon 1419.||§1 In each diocese and for all cases which are not expressly excepted in law, the judge of first instance is the diocesan Bishop. He can exercise his judicial power either personally or through others, in accordance with the following canons.
§2 If the case concerns the rights or temporal goods of a juridical person represented by the Bishop, the appeal tribunal is to judge in first instance.
|Canon 1420.||§1 Each diocesan Bishop is obliged to appoint a judicial Vicar, or
‘Officialis’, with ordinary power to judge. The judicial Vicar is to be a person distinct from the Vicar general, unless the smallness of the diocese or the limited number of cases suggests otherwise.
§2 The judicial Vicar constitutes one tribunal with the Bishop, but cannot judge cases which the Bishop reserves to himself.
§3 The judicial Vicar can be given assistants, who are called associate judicial Vicars or ‘Vice-officiales’.
§4 The judicial Vicar and the associate judicial Vicars must be priests of good repute, with a doctorate or at least a licentiate in canon law, and not less than thirty years of age.
§5 When the see is vacant, they do not cease from office, nor can they be removed by the diocesan Administrator. On the coming of the new Bishop, however, they need to be confirmed in office.
|Canon 1421.||§1 In each diocese the Bishop is to appoint diocesan judges, who are to be clerics.
§2 The Episcopal Conference can permit that lay persons also be appointed judges.
Where necessity suggests, one of these can be chosen in forming a college of Judges.
§3 Judges are to be of good repute, and possess a doctorate, or at least a licentiate, in canon law.
|Canon 1422.||The judicial Vicar, the associate judicial Vicars and the other judges are appointed for a specified period of time, without prejudice to the provision of can.
1420 §5. They cannot be removed from office except for a lawful and grave reason.
|Canon 1423.||§1 With the approval of the Apostolic See, several diocesan Bishops can agree to establish one tribunal of first instance in their dioceses, in place of the diocesan tribunals mentioned in can. 1419-1421. In this case the group of Bishops, or a Bishop designated by them, has all the powers which the diocesan Bishop has for his tribunal.
§2 The tribunals mentioned in §1 can be established for all cases, or for some types of cases only.
|Canon 1424.||In any trial a sole judge can associate with himself two assessors as advisers; they may be clerics or lay persons of good repute.|
|Canon 1425.||§1 The following matters are reserved to a collegiate tribunal of three judges, any contrary custom being reprobated:
1° contentious cases: a) concerning the bond of sacred ordination; b) concerning the bond of marriage, without prejudice to the provisions of cann. 1686 and 1688;
2° penal cases: a) for offences which can carry the penalty of dismissal from the clerical state; b) concerning the imposition or declaration of an excommunication.
§2 The Bishop can entrust the more difficult cases or those of greater importance to the judgement of three or of five judges.
§3 The judicial Vicar is to assign judges in order by rotation to hear the individual cases, unless in particular cases the Bishop has decided otherwise.
§4 In a trial at first instance, if it should happen that it is impossible to constitute a college of judges, the Episcopal Conference can for as long as the impossibility persists, permit the Bishop to entrust cases to a sole clerical judge. Where possible, the sole judge is to associate with himself an assessor and an auditor.
§5 Once judges have been designated, the judicial Vicar is not to replace them, except for a very grave reason, which must be expressed in a decree.
|Canon 1426.||§1 A collegiate tribunal must proceed in a collegiate fashion and give its judgement by majority vote.
§2 As far as possible, the judicial Vicar or an associate judicial Vicar must preside over the collegiate tribunal.
|Canon 1427.||§1 If there is a controversy between religious, or houses of the same clerical religious institute of pontifical right, the judge at first instance, unless the
constitutions provide otherwise, is the provincial Superior or, if an autonomous monastery is concerned, the local Abbot.
§2 Without prejudice to a different provision in the constitutions, when a contentious matter arises between two provinces, the supreme Moderator, either personally or through a delegate, will be the judge at first instance. If the controversy is between two monasteries, the Abbot superior of the monastic congregation will be the judge.
§3 Finally, if a controversy arises between physical or juridical persons of different religious institutes or even of the same clerical institute of diocesan right or of the same lay institute, or between a religious person and a secular cleric or a lay person or a non-religious juridical person, it is the diocesan tribunal which judges at first instance.
|Processes » Trials in General » Different Grades and Kinds of Tribunals » The tribunal of the first instance » Auditors and relators|
|Canon 1428.||§1 The judge or, in the case of a collegiate tribunal, the presiding judge, can designate an auditor to instruct the case. The auditor may be chosen from the tribunal judges, or from persons approved by the Bishop for this office.
§2 The Bishop can approve clerics or lay persons for the role of auditor. They are to be persons conspicuous for their good conduct, prudence and learning.
§3 The task of the auditor is solely to gather the evidence in accordance with the judge’s commission and, when gathered, to submit it to the judge. Unless the judge determines otherwise, however, an auditor can in the meantime decide what evidence is to be collected and the manner of its collection, should any question arise about these matters while the auditor is carrying out his role.
|Canon 1429.||The presiding judge of a collegiate tribunal is to designate one of the judges of the college as ‘ponens’ or ‘relator’. This person is to present the case at the meeting of the judges and set out the judgement in writing. For a just reason the presiding judge can substitute another person in the place of the ‘ponens’.|
|Processes » Trials in General » Different Grades and Kinds of Tribunals » The tribunal of the first instance » The promoter of justice, the defender of the bond, and the notary|
|Canon 1430.||A promotor of justice is to be appointed in the diocese for penal cases, and for contentious cases in which the public good may be at stake. The promotor is bound by office to safeguard the public good.|
|Canon 1431.||§1 In contentious cases it is for the diocesan Bishop to decide whether the public good is at stake or not, unless the law prescribes the intervention of the promotor of justice, or this is clearly necessary from the nature of things.
§2 If the promotor of justice has intervened at an earlier instance of a trial, this intervention is presumed to be necessary at a subsequent instance.
|Canon 1432.||A defender of the bond is to be appointed in the diocese for cases which deal with the nullity of ordination or the nullity or dissolution of marriage. The defender of the bond is bound by office to present and expound all that can reasonably be argued against the nullity or dissolution.|
|Canon 1433.||In cases in which the presence of the promotor of justice or of the defender of the bond is required, the acts are invalid if they were not summoned. This does not apply if, although not summoned, they were in fact present or, having studied the acts, able to fulfil their role at least before the judgement.|
|Canon 1434.||Unless otherwise expressly provided:
1° whenever the law directs that the judge is to hear the parties or either of them, the promotor of justice and the defender of the bond are also to be heard if they are present;
2° whenever, at the submission of a party, the judge is required to decide some matter, the submission of the promotor of justice or of the defender of the bond engaged in the trial has equal weight.
|Canon 1435.||It is the Bishop’s responsibility to appoint the promotor of justice and defender of the bond. They are to be clerics or lay persons of good repute, with a doctorate or a licentiate in canon law, and of proven prudence and zeal for justice.|
|Canon 1436.||§1 The same person can hold the office of promotor of justice and defender of the bond, although not in the same case.
§2 The promotor of justice and the defender of the bond can be appointed for all cases, or for individual cases. They can be removed by the Bishop for a just reason.
|Canon 1437.||§1 A notary is to be present at every hearing, so much so that the acts are null unless signed by the notary.
§2 Acts drawn up by notaries constitute public proof.
|Processes » Trials in General » Different Grades and Kinds of Tribunals » The tribunal of the second instance|
|Canon 1438.||Without prejudice to the provision of can. 1444 §1, n. 1:
1° an appeal from the tribunal of a suffragan Bishop is to the metropolitan tribunal, without prejudice to the provisions of can. 1439.
2° in cases heard at first instance in the tribunal of the Metropolitan, the appeal is to a tribunal which the Metropolitan, with the approval of the Apostolic See, has designated in a stable fashion;
3° for cases dealt with before a provincial Superior, the tribunal of second instance is that of the supreme Moderator; for cases heard before the local Abbot, the second instance court is that of the Abbot superior of the monastic congregation.
|Canon 1439.||§1 If a single tribunal of first instance has been constituted for several dioceses, in accordance with the norm of can. 1423, the Episcopal Conference must, with the approval of the Holy See, constitute a tribunal of second instance, unless the dioceses are all suffragans of the same archdiocese.
§2 Even apart from the cases mentioned in §1, the Episcopal Conference can, with the approval of the Apostolic See, constitute one or more tribunals of second instance.
§3 In respect of the second instance tribunals mentioned in §§1-2, the Episcopal
Conference, or the Bishop designated by it, has all the powers that belong to a diocesan Bishop in respect of his own tribunal.
|Canon 1440.||If competence by reason of the grade of trial, in accordance with the provisions of cann. 1438 and 1439, is not observed, then the non-competence of the judge is absolute.|
|Canon 1441.||The tribunal of second instance is to be constituted in the same way as the tribunal of first instance. However, if a sole judge has given a judgement in first instance in accordance with can. 1425 §4, the second instance tribunal is to act collegially.|
|Processes » Trials in General » Different Grades and Kinds of Tribunals » The tribunals of the Apostolic See|
|Canon 1442.||The Roman Pontiff is the supreme judge for the whole catholic world. He gives judgement either personally, or through the ordinary tribunals of the Apostolic
See, or through judges whom he delegates.
|Canon 1443.||The ordinary tribunal constituted by the Roman Pontiff to receive appeals is the Roman Rota.|
|Canon 1444.||The Roman Rota judges:
1° in second instance, cases which have been judged by ordinary tribunals of first instance and have been referred to the Holy See by a lawful appeal;
2° in third or further instance, cases which have been processed by the Roman Rota itself or by any other tribunal, unless there is question of an adjudged matter.
§2 This tribunal also judges in first instance the cases mentioned in can. 1405 §3, and any others which the Roman Pontiff, either on his own initiative or at the request of the parties, has reserved to his tribunal and has entrusted to the Roman Rota. These cases are judged by the Rota also in second or further instances, unless the rescript entrusting the task provides otherwise.
|Canon 1445.||§1 The supreme Tribunal of the Apostolic Signatura hears:
1° plaints of nullity, petitions for total reinstatement and other recourses against rotal judgements;
2° recourses in cases affecting the status of persons, which the Roman Rota has refused to admit to a new examination;
3° exceptions of suspicion and other cases against Auditors of the Roman Rota by reason of things done in the exercise of their office;
4° the conflicts of competence mentioned in can. 1416.
§2 This same Tribunal deals with controversies which arise from an act of ecclesiastical administrative power, and which are lawfully referred to it. It also deals with other administrative controversies referred to it by the Roman Pontiff or by departments of the Roman Curia, and with conflicts of competence among these departments.
§3 This Supreme Tribunal is also competent:
1° to oversee the proper administration of justice and, should the need arise, to take notice of advocates and procurators;
2° to extend the competence of tribunals;
3° to promote and approve the establishment of the tribunals mentioned in cann.
1423 and 1439.
|Processes » Trials in General » The Discipline To Be Observed in Tribunals » The duty of judges and ministers of the tribunal|
|Canon 1446.||§1 All Christ’s faithful, and especially Bishops, are to strive earnestly, with due regard for justice, to ensure that disputes among the people of God are as far as possible avoided, and are settled promptly and without rancour.
§2 In the early stages of litigation, and indeed at any other time as often as he discerns any hope of a successful outcome, the judge is not to fail to exhort and assist the parties to seek an equitable solution to their controversy in discussions with one another. He is to indicate to them suitable means to this end and avail himself of serious-minded persons to mediate.
§3 If the issue is about the private good of the parties, the judge is to discern whether an agreement or a judgement by an arbitrator, in accordance with the norms of cann.
1717-1720, might usefully serve to resolve the controversy.
|Canon 1447.||Any person involved in a case as judge, promotor of justice, defender of the bond, procurator, advocate, witness or expert cannot subsequently, in another instance, validly determine the same case as a judge or exercise the role of assessor in it.|
|Canon 1448.||§1 The judge is not to undertake the hearing of a case in which any personal interest may be involved by reason of consanguinity or affinity in any degree of the direct line and up to the fourth degree of the collateral line, or by reason of guardianship or tutelage, or of close acquaintanceship or marked hostility or possible financial profit or loss.
§2 The promotor of justice, the defender of the bond, the assessor and the auditor must likewise refrain from exercising their offices in these circumstances.
|Canon 1449.||§1 In the cases mentioned in can. 1448, if the judge himself does not refrain from exercising his office, a party may object to him.
§2 The judicial Vicar is to deal with this objection. If the objection is directed against the judicial Vicar himself, the Bishop in charge of the tribunal is to deal with the matter.
§3 If the Bishop is the judge and the objection is directed against him, he is to refrain from judging.
§4 If the objection is directed against the promotor of justice, the defender of the bond or any other officer of the tribunal, it is to be dealt with by the presiding judge of a collegial tribunal, or by the sole judge if there is only one.
|Canon 1450.||If the objection is upheld, the persons in question are to be changed, but not the grade of trial.|
|Canon 1451.||§1 The objection is to be decided with maximum expedition, after hearing the parties, the promotor of justice or the defender of the bond, if they are engaged in the trial and the objection is not directed against them.
§2 Acts performed by a judge before being objected to are valid. Acts performed after the objection has been lodged must be rescinded if a party requests this within ten days of the admission of the objection.
|Canon 1452.||§1 In a matter which concerns private persons exclusively, a judge can proceed only at the request of a party. In penal cases, however, and in other cases which affect the public good of the Church or the salvation of souls, once the case has been lawfully introduced, the judge can and must proceed ex officio.
§2 The judge can also supply for the negligence of the parties in bringing forward evidence or in opposing exceptions, whenever this is considered necessary in order to avoid a gravely unjust judgement, without prejudice to the provisions of can. 1600.
|Canon 1453.||Judges and tribunals are to ensure that, within the bounds of justice, all cases are brought to a conclusion as quickly as possible. They are to see to it that in the tribunal of first instance cases are not protracted beyond a year, and in the tribunal of second instance not beyond six months.|
|Canon 1454.||All who constitute a tribunal or assist in it must take an oath to exercise their office properly and faithfully.|
|Canon 1455.||§1 In a penal trial, the judges and tribunal assistants are bound to observe always the secret of the office; in a contentious trial, they are bound to observe it if the revelation of any part of the acts of the process could be prejudicial to the parties.
§2 They are also obliged to maintain permanent secrecy concerning the discussion held by the judges before giving their judgement, and concerning the various votes and opinions expressed there, without prejudice to the provisions of can. 1609 §4.
§3 Indeed, the judge can oblige witnesses, experts, and the parties and their advocates or procurators, to swear an oath to observe secrecy. This may be done if the nature of the case or of the evidence is such that revelation of the acts or evidence would put at risk the reputation of others, or give rise to quarrels, or cause scandal or have any similar untoward consequence.
|Canon 1456.||The judge and all who work in the tribunal are forbidden to accept any gifts on the occasion of a trial.|
|Canon 1457.||§1 Judges can be punished by the competent authority with appropriate penalties, not excluding the loss of office, if, though certainly and manifestly competent, they refuse to give judgement; if, with no legal support, they declare themselves competent and hear and determine cases; if they breach the law of secrecy; or if, through deceit or serious negligence, they cause harm to the litigants.
§2 Tribunal officers and assistants are subject to the same penalties if they fail in their duty as above. The judge also has the power to punish them.
|Processes » Trials in General » The Discipline To Be Observed in Tribunals » The order of adjudication|
|Canon 1458.||Cases are to be heard in the order in which they were received and entered in the register, unless some case from among them needs to be dealt with more quickly than others. This is to be stated in a special decree which gives supporting reasons.|
|Canon 1459.||§1 Defects which can render the judgement invalid can be proposed as exceptions at any stage or grade of trial; likewise, the judge can declare such exceptions ex officio.
§2 Apart from the cases mentioned in §1, exceptions seeking a delay especially those which concern persons and the manner of trial, are to be proposed before the joinder of the issue, unless they emerge only after it. They are to be decided as soon as possible.
|Canon 1460.||§1 If an exception is proposed against the competence of the judge, the judge himself must deal with the matter.
§2 Where the exception concerns relative non-competence and the judge pronounces himself competent, his decision does not admit of appeal. However, a plaint of nullity and a total reinstatement are not prohibited.
§3 If the judge declares himself non-competent, a party who complains of being adversely affected can refer the matter within fifteen canonical days to the appeal tribunal.
|Canon 1461.||A judge who becomes aware at any stage of the case that he is absolutely non-competent, is bound to declare his non-competence.|
|Canon 1462.||§1 Exceptions to the effect that an issue has become an adjudged matter or has been agreed between the parties, and those other peremptory exceptions which are said to put an end to the suit, are to be proposed and examined before the joinder of the issue. Whoever raises them subsequently is not to be rejected, but will be ordered to pay the costs unless it can be shown that the objection was not maliciously delayed.
§2 Other peremptory exceptions are to be proposed in the joinder of the issue and treated at the appropriate time under the rules governing incidental questions.
|Canon 1463.||§1 Counter actions can validly be proposed only within thirty days of the joinder of the issue.
§2 Such counter actions are to be dealt with at the same grade of trial and simultaneously with the principal action, unless it is necessary to deal with them separately or the judge considers this procedure more opportune.
|Canon 1464.||Questions concerning the guarantee of judicial expenses or the grant of free legal aid which has been requested from the very beginning of the process, and other similar matters, are normally to be settled before the joinder of the issue|
|Processes » Trials in General » The Discipline To Be Observed in Tribunals » Time limits and delays|
|Canon 1465.||§1 The so-called canonical time limits are fixed times beyond which rights cease in law. They cannot be extended, nor can they validly be shortened except at the request of the parties.
§2 After hearing the parties, or at their request, the judge can, for a just reason, extend before they expire times fixed by himself or agreed by the parties. These times can never validly be shortened without the consent of the parties.
§3 The judge is to ensure that litigation is not unduly prolonged by reason of postponement.
|Canon 1466.||Where the law does not establish fixed times for concluding procedural actions, the judge is to define them, taking into consideration the nature of each act.|
|Canon 1467.||If the day appointed for a judicial action is a holiday, the fixed term is considered to be postponed to the first subsequent day which is not a holiday.|
|Processes » Trials in General » The Discipline To Be Observed in Tribunals » The place of the trial|
|Canon 1468.||As far as possible, the place where each tribunal sits is to be an established office which is open at stated times.|
|Canon 1469.||§1 A judge who is forcibly expelled from his territory or prevented from exercising jurisdiction there, can exercise his jurisdiction and deliver judgement outside the territory. The diocesan Bishop is, however, to be informed of the matter.
§2 Apart from the circumstances mentioned in §1, the judge, for a just reason and after hearing the parties, can go outside his own territory to gather evidence. This is
to be done with the permission of, and in a place designated by, the diocesan Bishop of the place to which he goes.
|Processes » Trials in General » The Discipline To Be Observed in Tribunals » Persons to be admitted to the court and the manner of preparing and keeping the acts|
|Canon 1470.||§1 Unless particular law prescribes otherwise, when cases are being heard before the tribunal, only those persons are to be present whom the law or the judge decides are necessary for the hearing of the case.
§2 The judge can with appropriate penalties take to task all who, while present at a trial, are gravely lacking in the reverence and obedience due to the tribunal. He can, moreover, suspend advocates and procurators from exercising their office in ecclesiastical tribunals.
|Canon 1471.||If a person to be interrogated uses a language unknown to the judge or the parties, an interpreter, appointed by the judge and duly sworn, can be employed in the case. Declarations are to be committed to writing in the original language, and a translation is to be added. An interpreter is also to be used if a deaf and dumb person must be interrogated, unless the judge prefers that replies to the questions he has asked be given in writing.|
|Canon 1472.||§1 Judicial acts must be in writing, both those which refer to the merits of the case, that is, the acts of the case, and those which refer to the procedure, that is, the procedural acts.
§2 Each page of the acts is to be numbered and bear a seal of authenticity.
|Canon 1473.||Whenever the signature of parties or witnesses is required in judicial acts, and the party or witness is unable or unwilling to sign, this is to be noted in the acts.
At the same time the judge and the notary are to certify that the act was read verbatim to the party or witness, and that the party or witness was either unable or unwilling to sign.
|Canon 1474.||§1 In the case of an appeal, a copy of the acts is to be sent to the higher tribunal, with a certification by the notary of its authenticity.
§2 If the acts are in a language unknown to the higher tribunal, they are to be translated into another language known to it. Suitable precautions are to be taken to ensure that the translation is accurate.
|Canon 1475.||§1 When the trial has been completed, documents which belong to private individuals must be returned to them, though a copy of them is to be retained.
§2 Without an order from the judge, notaries and the chancellor are forbidden to hand over to anyone a copy of the judicial acts and documents obtained in the process.
|Processes » Trials in General » The Parties in a Case » The petitioner and the repsondent|
|Canon 1476.||Any person, baptised or unbaptised, can plead before a court. A person lawfully brought to trial must respond.|
|Canon 1477.||Even though the plaintiff or the respondent has appointed a procurator or advocate, each is always bound to be present in person at the trial when the law or the judge so prescribes.|
|Canon 1478.||§1 Minors and those who lack the use of reason can stand before the court only through their parents, guardians or curators, subject to the provisions of §3.
§2 If the judge considers that the rights of minors are in conflict with the rights of the parents, guardians or curators, or that these cannot sufficiently protect the rights of the minors, the minors are to stand before the court through a guardian or curator assigned by the judge.
§3 However, in cases concerning spiritual matters and matters linked with the spiritual, if the minors have the use of reason, they can plead and respond without the consent of parents or guardians; indeed, if they have completed their fourteenth year, they can stand before the court on their own behalf; otherwise, they do so through a curator appointed by the judge.
§4 Those barred from the administration of their goods and those of infirm mind can themselves stand before the court only to respond concerning their own offences, or by order of the judge. In other matters they must plead and respond through their curators.
|Canon 1479.||A guardian or curator appointed by a civil authority can be admitted by an ecclesiastical judge, after he has consulted, if possible, the diocesan Bishop of the person to whom the guardian or curator has been given. If there is no such guardian or curator, or it is not seen fit to admit the one appointed, the judge is to appoint a guardian or curator for the case.|
|Canon 1480.||§1 Judicial persons stand before the court through their lawful representatives.
§2 In a case of absence or negligence of the representative, the Ordinary himself, either personally or through another, can stand before the court in the name of juridicial persons subject to his authority.
|Processes » Trials in General » The Parties in a Case » Procurators for litigation and advocates|
|Canon 1481.||§1 A party can freely appoint an advocate and procurator for him or herself. Apart from the cases stated in §§2 and 3, however, a party can plead and respond personally, unless the judge considers the services of a procurator or advocate to be necessary.
§2 In a penal trial the accused must always have an advocate, either appointed personally or allocated by the judge.
§3 In a contentious trial which concerns minors or the public good, the judge is ex officio to appoint a legal representative for a party who lacks one; matrimonial cases are excepted.
|Canon 1482.||§1 A person can appoint only one procurator; the latter cannot appoint a substitute, unless this faculty has been expressly conceded.
§2 If, however, several procurators have for a just reason been appointed by the same person, these are to be so designated that there is the right of prior claim among them.
§3 Several advocates can, however, be appointed together.
|Canon 1483.||The procurator and advocate must have attained their majority and be of good repute. The advocate is also to be a catholic unless the diocesan Bishop permits otherwise, a doctor in canon law or otherwise well qualified, and approved by the same Bishop.|
|Canon 1484.||§1 Prior to undertaking their office, the procurator and the advocate must deposit an authentic mandate with the tribunal.
§2 To prevent the extinction of a right, however, the judge can admit a procurator even though a mandate has not been presented; in an appropriate case, a suitable guarantee is to be given. However, the act lacks all force if the procurator does not present a mandate within the peremptory time-limit to be prescribed by the judge.
|Canon 1485.||Without a special mandate, a procurator cannot validly renounce a case, an instance or any judicial act; nor can a procurator settle an action, bargain, promise to abide by an arbitrator’s award, or in general do anything for which the law requires a special mandate.|
|Canon 1486.||§1 For the dismissal of a procurator or advocate to have effect, it must be notified to them and, if the joinder of the issue has taken place, the judge and the other party must be notified of the dismissal.
§2 When a definitive judgement has been given, the right and duty to appeal lie with the procurator, unless the mandating party refuses.
|Canon 1487.||For a grave reason, the procurator and the advocate can be removed from office by a decree of the judge given either ex officio or at the request of the party.|
|Canon 1488.||§1 Both the procurator and the advocate are forbidden to influence a suit by bribery, seek immoderate payment, or bargain with the successful party for a share of the matter in dispute. If they do so, any such agreement is invalid and they can be fined by the judge. Moreover, the advocate can be suspended from office and, if this is not a first offence, can be removed from the register of advocates by the Bishop in charge of the tribunal.
§2 The same sanctions can be imposed on advocates and procurators who fraudulently exploit the law by withdrawing cases from tribunals which are competent, so that they may be judged more favourably by other tribunals.
|Canon 1489.||Advocates and procurators who betray their office because of gifts or promises, or any other consideration, are to be suspended from the exercise of their profession, and be fined or punished with other suitable penalties.|
|Canon 1490.||As far as possible, permanent advocates and procurators are to be appointed in each tribunal and to receive a salary from the tribunal. They are to exercise their office, especially in matrimonial cases, for parties who may wish to choose them.|
|Processes » Trials in General » Actions and Exceptions » Actions and exceptions in general|
|Canon 1491.||Every right is reinforced not only by an action, unless otherwise expressly provided, but also by an exception.|
|Canon 1492.||§1 Every action is extinguished by prescription in accordance with the law, or in any other lawful way, with the exception of actions bearing on personal status, which are never extinguished.
§2 Without prejudice to the provision of can. 1462, an exception is always possible, and is of its nature perpetual.
|Canon 1493.||A plaintiff can bring several exceptions simultaneously against another person, concerning either the same matter or different matters, provided they are not in conflict with one another, and do not go beyond the competence of the tribunal that has been approached.|
|Canon 1494.||§1 A respondent can institute a counter action against a plaintiff before the same judge and in the same trial, either by reason of the case’s connection with the principal action, or with a view to removing or mitigating the plaintiff’s plea.
§2 A counter action to a counter action is not admitted.
|Canon 1495.||The counter action is to be proposed to the judge before whom the original action was initiated, even though he has been delegated for one case only, or is otherwise relatively non-competent.|
|Processes » Trials in General » Actions and Exceptions » Specific actions and exceptions|
|Canon 1496.||§1 A person who advances arguments, which are at least probable, to support a right to something held by another, and to indicate an imminent danger of loss of the object unless it is handed over for safekeeping, has a right to obtain from the judge the sequestration of the object in question.
§2 In similar circumstances, a person can obtain a restraint on another person’s exercise of a right.
|Canon 1497.||§1 The sequestration of an object is also allowed for the security of a loan, provided there is sufficient evidence of the creditor’s right.
§2 Sequestration can also extend to the assets of a debtor which, on whatever title, are in the keeping of others, as well as to the loans of the debtor.
|Canon 1498.||The sequestration of an object, and restraint on the exercise of a right, can in no way be decreed if the loss which is feared can be otherwise repaired, and a suitable guarantee is given that it will be repaired.|
|Canon 1499.||The judge who grants the sequestration of an object, or the restraint on the exercise of a right, can first impose on the person to whom the grant is made an undertaking to repay any loss if the right is not proven.|
|Canon 1500.||In matters concerning the nature and effect of an action for possession, the provisions of the civil law of the place where the thing to be possessed is situated, are to be observed.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Introduction of the Case » The introductory libellus of litigation|
|Canon 1501.||A judge cannot investigate any case unless a plea, drawn up in accordance with canon law, is submitted either by a person whose interest is involved, or by the promotor of justice.|
|Canon 1502.||A person who wishes to sue another must present a petition to a judge who is lawfully competent. In this petition the matter in dispute is to be set out and the intervention of the judge requested.|
|Canon 1503.||§1 A judge can admit an oral plea whenever the plaintiff is impeded from presenting a petition or when the case can be easily investigated and is of minor significance.
§2 In both cases, however, the judge is to direct a notary to record the matter in writing. This written record is to be read to, and approved by, the plaintiff, and it takes the place of a petition written by the plaintiff as far as all effects of law are concerned.
|Canon 1504.||The petition by which a suit is introduced must:
1° state the judge before whom the case is being introduced, what is being sought and from whom it is being sought;
2° indicate on what right the plaintiff bases the case and, at least in general terms, the facts and evidence to be submitted in support of the allegations made;
3° be signed by the plaintiff or the plaintiff’s procurator, and bear the day, the month and the year, as well as the address at which the plaintiff or the procurator resides, or at which they say they reside for the purpose of receiving the acts;
4° indicate the domicile or quasi-domicile of the respondent.
|Canon 1505.||§1 Once he has satisfied himself that the matter is within his competence and the plaintiff has the right to stand before the court, the sole judge, or the presiding judge of a collegiate tribunal, must as soon as possible by his decree either admit or reject the petition.
§2 A petition can be rejected only if:
1° the judge or the tribunal is not legally competent;
2° it is established beyond doubt that the plaintiff lacks the right to stand before the court;
3° the provisions of can. 1504 nn. 1-3 have not been observed
4° it is certainly clear from the petition that the plea lacks any foundation, and that there is no possibility that a foundation will emerge from a process.
§3 If a petition has been rejected by reason of defects which can be corrected, the plaintiff can draw up a new petition correctly and present it again to the same judge.
§4 A party is always entitled, within ten canonical days, to have recourse, based upon stated reasons, against the rejection of a petition. This recourse is to be made either to the tribunal of appeal or, if the petition was rejected by the presiding judge, to the collegiate tribunal. A question of rejection is to be determined with maximum expedition.
|Canon 1506.||If within a month of the presentation of a petition, the judge has not issued a decree admitting or rejecting it in accordance with can. 1505, the interested party can insist that the judge perform his duty. If, notwithstanding this, the judge does not respond within ten days of the party’s request, the petition is to be taken as having been admitted.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Introduction of the Case » The citation and notification of judicial acts|
|Canon 1507.||§1 In the decree by which a plaintiff’s petition is admitted, the judge or the presiding judge must call or summon the other parties to court to effect the joinder of the issue; he must prescribe whether, in order to agree the point at issue, they are to reply in writing or to appear before him. If, from their written replies, he perceives the need to convene the parties, he can determine this by a new decree.
§2 If a petition is deemed admitted in accordance with the provisions of can. 1506, the decree of summons to the trial must be issued within twenty days of the request of which that canon speaks.
§3 If the litigants in fact present themselves before the judge to pursue the case, there is no need for a summons; the notary, however, is to record in the acts that the parties were present at the trial.
|Canon 1508.||§1 The decree of summons to the trial must be notified at once to the respondent, and at the same time to any others who are obliged to appear.
§2 The petition introducing the suit is to be attached to the summons, unless for grave reasons the judge considers that the petition is not to be communicated to the other party before he or she gives evidence.
§3 If a suit is brought against a person who does not have the free exercise of personal rights, or the free administration of the matters in dispute, the summons is to be notified to, as the case may be, the guardian, the curator, the special procurator, or the one who according to law is obliged to undertake legal proceedings in the name of such a person.
|Canon 1509.||§1 With due regard to the norms laid down by particular law, the notification of summonses, decrees, judgements and other judicial acts is to be done by means of the public postal service, or by some other particularly secure means.
§2 The fact and the manner of notification must be shown in the acts.
|Canon 1510.||A respondent who refuses to accept a document of summons, or who circumvents the delivery of a summons, is to be regarded as lawfully summoned.|
|Canon 1511.||Without prejudice to the provision of can. 1507 §3, if a summons has not been lawfully communicated, the acts of the process are null.|
|Canon 1512.||Once a summons has been lawfully communicated, or the parties have presented themselves before a judge to pursue the case:
1° the matter ceases to be a neutral one;
2° the case becomes that of the judge or of the tribunal, in other respects lawfully competent, before whom the action was brought;
3° the jurisdiction of a delegated judge is established in such a way that it does not lapse on the expiry of the authority of the person who delegated;
4° prescription is interrupted, unless otherwise provided;
5° the suit begins to be a pending one, and therefore the principle immediately applies ‘while a suit is pending, no new element is to be introduced’.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Joinder of the Issue|
|Canon 1513.||§1 The joinder of the issue occurs when the terms of the controversy, as derived from the pleas and the replies of the parties, are determined by a decree of the judge.
§2 The pleas and the replies of the parties may be expressed not only in the petition introducing the suit, but also either in the response to the summons, or in statements made orally before the judge. In more difficult cases, however, the parties are to be convened by the judge, so as to agree the question or questions to which the judgement must respond.
§3 The decree of the judge is to be notified to the parties. Unless they have already agreed on the terms, they may within ten days have recourse to the same judge to request that the decree be altered. This question, however, is to be decided with maximum expedition by a decree of the judge.
|Canon 1514.||Once determined, the terms of the controversy cannot validly be altered except by a new decree, issued for a grave reason, at the request of the party, and after the other parties have been consulted and their observations considered.|
|Canon 1515.||Once the joinder of the issue has occurred, the possessor of another’s property ceases to be in good faith. If, therefore, the judgement is that he or she return the property, the possessor must return also any profits accruing from the date of the joinder, and must compensate for damages.|
|Canon 1516.||Once the joinder of the issue has occurred, the judge is to prescribe an appropriate time within which the parties are to present and to complete the evidence.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Trial of the Litigation|
|Canon 1517.||The trial of the issue is initiated by the summons. It is concluded not only by the pronouncement of the definitive judgement, but also by other means determined by law.|
|Canon 1518.||If a litigant dies, or undergoes a change in status, or ceases from the office in virtue of which he or she was acting:
1° if the case has not yet been concluded, the trial is suspended until the heir of the deceased, or the successor, or a person whose interest is involved, resumes the suit
2° if the case has been concluded, the judge must proceed to theremaining steps of the case, having first summoned the procurator, if there is one, or else the heir or the successor of the deceased.
|Canon 1519.||§1 If the guardian or the curator or the procurator required in accordance with cann. 1481 §§1 and 3, ceases from office, the trial is suspended for the time being.
§2 However, the judge is to appoint another guardian or curator as soon as possible.
He can appoint a procurator ad litem if the party has neglected to do so within the brief time prescribed by the judge himself.
|Canon 1520.||If over a period of six months, no procedural act is performed by the parties, and they have not been impeded from doing so, the trial is abated. Particular law may prescribe other time limits for abatement.|
|Canon 1521.||Abatement takes effect by virtue of the law itself, and it is effective against everyone, even minors and those equivalent to minors; moreover, it must be declared even ex officio. This, however, is without prejudice to the right to claim compensation against those guardians, curators, administrators and procurators who have not proved that they were without fault.|
|Canon 1522.||Abatement extinguishes the acts of the process, but not the acts of the case. The acts of the case may indeed be employed in another instance, provided the case is between the same persons and about the same matter. As far as those outside the case are concerned, however these acts have no standing other than as documents.
[NB see Authentic Interpretation of canons 1522 and 1525, 17.V.1986]
|Canon 1523.||When a trial has been abated, the litigants are to bear the expenses which each has incurred.|
|Canon 1524.||§1 The plaintiff may renounce a trial at any stage or at any grade.
Likewise, both the plaintiff and the respondent may renounce the acts of the process either in whole or only in part.
§2 To renounce the trial of an issue, guardians and administrators of juridical persons must have the advice or the consent of those whose agreement is required to conduct negotiations which exceed the limits of ordinary administration.
§3 To be valid, a renunciation must be in writing, and must be signed either by the party, or by a procurator who has been given a special mandate for this purpose; it must be communicated to the other party, who must accept or at least not oppose it; and it must be admitted by the judge.
|Canon 1525.||Once a renunciation has been admitted by the judge, it has the same effects for the acts which have been renounced as has an abatement of the trial.
Likewise, it obliges the person renouncing to pay the expenses of those acts which have been renounced.
[NB see Authentic Interpretation of canons 1522 and 1525, 17.V.1986]
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs|
|Canon 1526.||§1 The onus of proof rests upon the person who makes an allegation.
§2 The following matters do not require proof:
1° matters which are presumed by the law itself;
2° facts alleged by one of the litigants and admitted by the other, unless their proof is nevertheless required either by law or by the judge.
|Canon 1527.||§1 Any type of proof which seems useful for the investigation of the case and is lawful, may be admitted.
§2 If a party submits that proof, which has been rejected by the judge, should be admitted, the judge is to determine the matter with maximum expedition.
|Canon 1528.||If a party or a witness refuses to testify before the judge, that person may lawfully be heard by another, even a lay person, appointed by the judge, or asked to make a declaration either before a public notary or in any other lawful manner.|
|Canon 1529.||Unless there is a grave reason, the judge is not to proceed to collect the proofs before the joinder of the issue.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » The declarations of the parties|
|Canon 1530.||The judge may always question the parties the more closely to elicit the truth. He must do so if requested by one of the parties, or in order to prove a fact which the public interest requires to be placed beyond doubt.|
|Canon 1531.||§1 A party who is lawfully questioned is obliged to respond and to tell the whole truth.
§2 If a party has refused to reply, it is for the judge to evaluate what, as far as the proof of the facts is concerned, can be deduced therefrom.
|Canon 1532.||Unless a grave reason suggests otherwise, in cases in which the public good is at stake the judge is to administer to the parties an oath that they will tell the truth, or at least that what they have said is the truth. In other cases, it is left to the prudent discretion of the judge to determine whether an oath is to be administered.|
|Canon 1533.||The parties, the promotor of justice and the defender of the bond may submit to the judge propositions upon which a party is to be questioned.|
|Canon 1534.||The provisions of can. 15482, n. 1, 1552 and 1558-1565 concerning witnesses are to be observed, with the appropriate qualifications, in the questioning of the parties.|
|Canon 1535.||A judicial confession is an assertion of fact against oneself, concerning a matter relevant to the trial, which is made by a party before a judge who is legally competent; this is so whether the assertion is made in writing or orally, whether spontaneously or in response to the judge’s questioning.|
|Canon 1536.||§1 In a private matter and where the public good is not at stake, a judicial confession of one party relieves the other parties of the onus of proof.
§2 In cases which concern the public good, however, a judicial confession, and declarations by the parties which are not confessions, can have a probative value that is to be weighed by the judge in association with the other circumstances of the case, but the force of full proof cannot be attributed to them unless there are other elements which wholly corroborate them.
|Canon 1537.||It is for the judge, having considered all the circumstances, to evaluate the weight to be given to an extra-judicial confession which is introduced into the trial.|
|Canon 1538.||A confession, or any other declaration of a party, is devoid of all force if clearly shown to be based on an error of fact or to have been extracted by force or grave fear.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents|
|Canon 1539.||In every type of trial documentary proof is admitted, whether the documents be public or private.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents » The nature and trustworthiness of documents|
|Canon 1540.||§1 Public ecclesiastical documents are those which an official person draws up in the exercise of his or her function in the Church and in which the formalities required by law have been observed.
§2 Public civil documents are those which are legally regarded as such in accordance with the laws of each place.
§3 All other documents are private.
|Canon 1541.||Unless it is otherwise established by contrary and clear arguments, public documents constitute acceptable evidence of those matters which are directly and principally affirmed in them.|
|Canon 1542.||A private document, whether acknowledged by a party or admitted by a judge, has the same probative force as an extra-judicial confession, against its author or the person who has signed it and against persons whose case rests on that of the author or signatory. Against others it has the same force as have declarations by the parties which are not confessions, in accordance with can. 1536 §2.|
|Canon 1543.||If documents are shown to have been erased, amended, falsified or otherwise tampered with, it is for the judge to evaluate to what extent, if any, they are to be given credence.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents » The presentation of documents|
|Canon 1544.||Documents do not have probative force at a trial unless they are submitted in original form or in authentic copy and are lodged in the office of the tribunal, so that they may be inspected by the judge and by the opposing party.|
|Canon 1545.||The judge can direct that a document common to each of the parties is to be submitted in the process.|
|Canon 1546.||§1 No one is obliged to exhibit documents, even if they are common, which cannot be communicated without danger of the harm mentioned in can. 1548
§2, n. 2, or without the danger of violating a secret which is to be observed.
§2 If, however, at least an extract from a document can be transcribed and submitted in copy without the disadvantages mentioned, the judge can direct that it be produced in that form.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies|
|Canon 1547.||Proof by means of witnesses is admitted in all cases, under the direction of the judge.|
|Canon 1548.||§1 Witnesses must tell the truth to a judge who lawfully questions them.
§2 Without prejudice to the provisions of can. 1550 §2, n. 2 the following are exempted from the obligation of replying to questions:
1° clerics, in those matters revealed to them by reason of their sacred ministry; civil officials, doctors, midwives, advocates, notaries and others who are bound by the secret of their office, even on the ground of having offered advice, in respect of matters subject to this secret;
2° those who fear that, as a result of giving evidence, a loss of reputation, dangerous harassment or some other grave evil will arise for themselves, their spouses, or those related to them by consanguinity or affinity.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » Those who can be witnesses|
|Canon 1549.||Everyone can be a witness, unless expressly excluded, whether wholly or in part, by the law.|
|Canon 1550.||§1 Minors under the age of fourteen years and those who are of feeble mind are not admitted to give evidence. They can, however, be heard if the judge declares by a decree that it would be appropriate to do so.
§2 The following are deemed incapable of being witnesses:
1° the parties in the case or those who appear at the trial in the name of the parties; the judge and his assistant; the advocate and those others who in the same case assist or have assisted the parties;
2° priests, in respect of everything which has become known to them in sacramental confession, even if the penitent has asked that these things be made known.
Moreover, anything that may in any way have been heard by anyone on the occasion of confession, cannot be accepted even as an indication of the truth.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The introduction and exclusion of witnesses|
|Canon 1551.||A party who has introduced a witness may forego the examination of that witness, but the opposing party may ask that the witness nevertheless be examined.|
|Canon 1552.||§1 When proof by means of witnesses is sought, the names and addresses of the witnesses are to be communicated to the tribunal.
§2 The propositions on which the interrogation of the witnesses is requested, are to be submitted within the time-limit determined by the judge; otherwise, the request is to be deemed abandoned.
|Canon 1553.||It is for the judge to curb an excessive number of witnesses.|
|Canon 1554.||Before witnesses are examined, their names are to be communicated to the parties. If, in the prudent opinion of the judge, this cannot be done without great difficulty, it is to be done at least before the publication of the evidence.|
|Canon 1555.||Without prejudice to the provisions of can. 1550, a party may request that a witness be excluded, provided a just reason for exclusion is established before the witness is examined.|
|Canon 1556.||The summons of a witness is effected by a decree of the judge lawfully notified to the witness.|
|Canon 1557.||A properly summoned witness is to appear, or to make known to the judge the reason for being absent.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The examination of witnesses|
|Canon 1558.||§1 Witnesses are to be examined at the office of the tribunal unless the judge deems otherwise.
§2 Cardinals, Patriarchs, Bishops, and those who in their own civil law enjoy a similar favour, are to be heard at the place selected by themselves.
§3 Without prejudice to the provisions of cann. 1418 and 1469 §2, the judge is to decide where witnesses are to be heard for whom, by reason of distance, illness or other impediment, it is impossible or difficult to come to the office of the tribunal.
|Canon 1559.||The parties cannot be present at the examination of the witnesses unless, especially when there is question of a private interest, the judge has determined that
they are to be admitted. Their advocates or procurators, however, may attend, unless by reason of the circumstances of matter and persons, the judge has determined that the proceedings are to be in secret.
|Canon 1560.||§1 The witnesses are to be examined individually and separately.
§2 If in a grave matter the witnesses disagree either among themselves or with one of the parties, the judge may arrange for those who differ to meet or to confront one another, but must, in so far as possible, eliminate discord and scandal.
|Canon 1561.||The examination of a witness is conducted by the judge, or by his delegate or an auditor, who is to be attended by a notary. Accordingly, unless particular law provides otherwise, if the parties or the promotor of justice or the defender of the bond or the advocates who are present at the hearing have additional questions to put to the witness, they are to propose these not to the witness, but to the judge, or to the one who is taking the judge’s place, so that he or she may put them.|
|Canon 1562.||§1 The judge is to remind the witness of the grave obligation to tell the whole truth and nothing but the truth.
§2 The judge is to administer an oath to the witness in accordance with can. 1532. If, however, a witness refuses to take an oath, he or she is to be heard unsworn.
|Canon 1563.||The judge is first of all to establish the identity of the witness. The relationship which the witness has with the parties is to be probed, and when specific questions concerning the case are asked of the witness enquiry is to be made into the sources of his or her knowledge and the precise time the witness came to know the matters which are asserted.|
|Canon 1564.||The questions are to be brief, and appropriate to the understanding of the person being examined. They are not to encompass a number of matters at the same time, nor be captious or deceptive. They are not to be leading questions, nor give any form of offence. They are to be relevant to the case in question.|
|Canon 1565.||§1 The questions are not to be made known in advance to the witnesses.
§2 If, however, the matters about which evidence is to be given are so remote in memory that they cannot be affirmed with certainty unless they are recalled beforehand, the judge may, if he thinks this can safely be done, advise the witness in advance about certain aspects of the matter.
|Canon 1566.||The witnesses are to give evidence orally. They are not to read from a script, except where there is a question of calculations or accounts; in this case, they may consult notes which they have brought with them.|
|Canon 1567.||§1 The replies are to be written down at once by the notary. The record must show the very words of the evidence given, at least in what concerns those things which bear directly on the matter of the trial.
§2 The use of a tape-recorder is allowed, provided the replies are subsequently committed to writing and, if possible, signed by the deponents.
|Canon 1568.||The notary is to mention in the acts whether the oath was taken or excused or refused; who were present, parties and others; the questions added ex officio; and in general, everything worthy of record which may have occurred while the witnesses were being examined.|
|Canon 1569.||§1 At the conclusion of the examination, the record of the evidence, either as written down by the notary or as played back from the tape-recording, must be communicated to the witness, who is to be given the opportunity of adding to, omitting from, correcting or varying it.
§2 Finally, the witness, the judge and the notary must sign the record.
|Canon 1570.||Before the acts or the testimony are published, witnesses, even though already examined, may be called for re-examination, either at the request of a party or ex officio. This may be done if the judge considers it either necessary or useful, provided there is no danger whatever of collusion or of inducement.|
|Canon 1571.||Witnesses must be refunded both the expenses they incurred and the losses they sustained by reason of their giving evidence, in accordance with the equitable assessment of the judge.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The trustworthiness of testimonies|
|Canon 1572.||In weighing evidence the judge may, if it is necessary, seek testimonial letters, and is to take into account:
1° the condition and uprightness of the witness
2° whether the knowledge was acquired at first hand, particularly ifit was something seen or heard personally, or whether it was opinion, rumour or hearsay;
3° whether the witness is constant and consistent, or varies, is uncertain or vacillating;
4° whether there is corroboration of the testimony, and whether it is confirmed or not by other items of evidence.
|Canon 1573.||The deposition of one witness cannot amount to full proof, unless the witness is a qualified one who gives evidence on matters carried out in an official capacity, or unless the circumstances of persons and things persuade otherwise.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Experts|
|Canon 1574.||The services of experts are to be used whenever, by a provision of the law or of the judge, their study and opinion, based upon their art or science, are required to establish some fact or to ascertain the true nature of some matter.|
|Canon 1575.||It is for the judge, after hearing the opinions or suggestions of the parties, to appoint the experts or, if such is the case, to accept reports already made by other experts.|
|Canon 1576.||Experts can be excluded or objected to for the same reasons as witnesses.|
|Canon 1577.||§1 The judge in his decree must define the specific terms of reference to be considered in the expert’s task, taking into account whatever may have been gathered from the litigants.
§2 The expert is to be given the acts of the case, and any documents and other material needed for the proper and faithful discharge of his or her duty.
§3 The judge, after discussion with the expert, is to determine a time for the completion of the examination and the submission of the report.
|Canon 1578.||§1 Each expert is to complete a report distinct from that of the others, unless the judge orders that one report be drawn up and signed by all of them. In this case, differences of opinion, if there are such, are to be faithfully noted.
§2 Experts must clearly indicate the documents or other appropriate means by which they have verified the identity of persons, places or things. They are also to state the manner and method followed in fulfilling the task assigned to them, and the principal arguments upon which their conclusions are based.
§3 If necessary, the expert may be summoned by the judge to supply further explanations.
|Canon 1579.||§1 The judge is to weigh carefully not only the expert’s conclusions, even when they agree, but also all the other circumstances of the case.
§2 When he is giving the reasons for his decision, the judge must state on what grounds he accepts or rejects the conclusions of the experts.
|Canon 1580.||Experts are to be paid their expenses and honorariums. These are to be determined by the judge in a proper and equitable manner, with due observance of particular law.|
|Canon 1581.||§1 Parties can designate their own experts, to be approved by the judge.
§2 If the judge admits them, these experts can inspect the acts of the case, in so far as required for the discharge of their duty, and can be present when the appointed experts fulfil their role. They can always submit their reports.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Judicial examination and inspection|
|Canon 1582.||If, in order to decide the case, the judge considers it opportune to visit some place, or inspect some thing, he is to set this out in a decree. After he has heard the parties, the decree is to give a brief description of what is to be made available for this access.|
|Canon 1583.||After the inspection has been carried out, a document concerning it is to be drawn up.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Presumptions|
|Canon 1584.||A presumption is a probable conjecture about something which is uncertain. Presumptions of law are those stated in the law; human presumptions are those made by a judge.|
|Canon 1585.||A person with a presumption of law in his or her favour is freed from the onus of proof, which then falls on the other party.|
|Canon 1586.||The judge is not to make presumptions which are not stated in the law, other than on the basis of a certain and determinate fact directly connected to the matter in dispute.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Incidental Cases|
|Canon 1587.||An incidental matter arises when, after the case has begun by the summons, a question is proposed which, even though not expressly raised in the petition which introduced the case, is yet so relevant to the case that it needs to be settled before the principal question.|
|Canon 1588.||An incidental matter is proposed before the judge who is competent to decide the principal case. It is raised in writing or orally, indicating the connection between it and the principal case.|
|Canon 1589.||§1 When the judge has received the petition and heard the parties, he is to decide with maximum expedition whether the proposed incidental matter has a foundation in, and a connection with, the principal matter, or whether it is to be rejected from the outset. If he admits it he must decide whether it is of such gravity that it needs to be determined by an interlocutory judgement or by a decree.
§2 If, however, he concludes that the incidental matter is not to be decided before the definitive judgement, he is to determine that account be taken of it when the principal matter is decided.
|Canon 1590.||§1 If the incidental matter is to be decided by judgement, the norms for a contentious oral process are to be observed unless, because of the gravity of the issue, the judge deems otherwise.
§2 If it is to be decided by decree, the tribunal can entrust the matter to an auditor or to the presiding judge.
|Canon 1591.||Before the principal matter is concluded, the judge or the tribunal may for a just reason revoke or alter an interlocutory judgement or decree. This can be done either at the request of a party or ex officio by the judge after he has heard the parties.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Incidental Cases » Parties who do not appear|
|Canon 1592.||§1 If a respondent is summoned but does not appear, and either does not offer an adequate excuse for absence or has not replied in accordance with can. 1507
§1, the judge is to declare the person absent from the process, and decree that the case is to proceed to the definitive judgement and to its execution, with due observance of the proper norms.
§2 Before issuing the decree mentioned in §1, the judge must make sure, if necessary by means of another summons, that a lawful summons did reach the respondent within the canonical time.
|Canon 1593.||§1 If the respondent thereafter appears before the judge, or replies before the trial is concluded, he or she can bring forward conclusions and proofs, without prejudice to the provisions of can. 1600; the judge is to take care, however, that the process is not deliberately prolonged by lengthy and unnecessary delays.
§2 Even if the respondent has neither appeared nor given a reply before the case is decided, he or she can challenge the judgement; if the person can show that there was a just reason for being absent, and that there was no fault involved in not intimating this earlier, a plaint of nullity can be lodged.
|Canon 1594.||If the plaintiff does not appear on the day and at the hour arranged for the joinder of the issue, and does not offer a suitable excuse:
1° the judge is to summon the plaintiff again;
2° if the plaintiff does not obey the new summons, it is presumed that the case has been abandoned in accordance with can. 1524--1525;
3° if the plaintiff should want to intervene at a subsequent stage in the process, the provisions of can. 1593 are to be observed.
|Canon 1595.||§1 A party, whether plaintiff or respondent, who is absent from the trial, and who does not establish the existence of a just impediment, is bound to pay the expenses which have been incurred in the case because of this absence, and also, if need be, to indemnify the other party.
§2 If both the plaintiff and the respondent were absent from the trial, they are jointly bound to pay the expenses of the case.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Incidental Cases » The intervention of a third person in a case|
|Canon 1596.||§1 Any person with a legitimate interest can be allowed to intervene in a case in any instance of the suit, either as a party defending his or her own right or, in an accessory role, to help one of the litigants.
§2 To be admitted, however, the person must, before the conclusion of the case, produce to the judge a petition which briefly establishes the right to intervene.
§3 A person who intervenes in a case is to be admitted at that stage which the case has reached. If the case has reached the evidence stage, a brief and peremptory time-limit is to be assigned within which to bring forward evidence.
|Canon 1597.||A third party whose intervention is seen to be necessary must be called into the case by the judge, after he has consulted the parties.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Publication of the Acts, the Conclusion of the Case, and the Discussion of the Case|
|Canon 1598.||§1 When the evidence has been assembled, the judge must, under pain of nullity, by a decree permit the parties and their advocates to inspect at the tribunal office those acts which are not yet known to them. Indeed, if the advocates so request, a copy of the acts can be given to them. In cases which concern the public good, however, the judge can decide that, in order to avoid very serious dangers, some part or parts of the acts are not to be shown to anyone; he must take care, however, that the right of defence always remains intact.
§2 To complete the evidence, the parties can propose other items of proof to the judge. When these have been assembled the judge can, if he deems it appropriate, again issue a decree as in §1.
|Canon 1599.||§1 When everything concerned with the production of evidence has been completed, the conclusion of the case is reached.
§2 This conclusion occurs when the parties declare that they have nothing further to add, or when the canonical time allotted by the judge for the production of evidence has elapsed, or when the judge declares that he considers the case to be sufficiently instructed.
§3 By whichever way the case has come to its conclusion, the judge is to issue a decree declaring that it is concluded.
|Canon 1600.||Only in the following situations can the judge, after the conclusion of the case, still recall earlier witnesses or call new ones, or make provision for other evidence not previously requested:
1° in cases in which only the private good of the parties is involved if all the parties agree;
2° in other cases, provided that the parties have been consulted, that a grave reason exists, and that all danger of fraud or subornation is removed;
3° in all cases, whenever it is probable that, unless new evidence is admitted, the judgement will be unjust for any of the reasons mentioned in can. 1645 §2, nn. 1-3.
§2 The judge can, however, command or permit the presentation of a document which, even without fault of the interested party, could not be presented earlier.
§3 New evidence is to be published according to can. 1598 §1.
|Canon 1601.||When the case has been concluded, the judge is to determine a suitable period of time for the presentation of pleadings and observations.|
|Canon 1602.||§1 Pleadings and observations are to be in writing unless the judge, with the consent of the parties, considers it sufficient to have a discussion before the tribunal in session.
§2 If the pleadings and the principal documents are to be printed, the prior permission of the judge is required, and the obligation of secrecy, where it exists, is still to be observed.
§3 The directions of the tribunal are to be observed in questions concerning the length of the pleadings, the number of copies and other similar matters.
|Canon 1603.||§1 When the pleadings and observations have been exchanged, each party can make reply within a brief period of time determined by the judge.
§2 This right is given to the parties once only, unless for a grave reason the judge considers that the right to a second reply is to be given; if this right is given to one party, it is to be considered as given to the other as well.
§3 The promotor of justice and the defender of the bond have the right to respond to every reply of the parties.
|Canon 1604.||§1 It is absolutely forbidden that any information given to the judge by the parties or the advocates, or by any other persons, be excluded from the acts of the case.
§2 If the pleadings in the case are made in writing, the judge may, in order to clarify any outstanding issues, order that a moderate oral discussion be held before the tribunal in session.
|Canon 1605.||The notary is to be present at the oral discussion mentioned in can. 1602
§1 and 1604 §2, so that, if the judge so orders, or the parties so request and the judge consents, the notary can immediately make a written report of what has been discussed and concluded.
|Canon 1606.||If the parties neglect to prepare their pleadings within the time allotted to them, or if they entrust themselves to the knowledge and conscience of the judge, and if at the same time the judge perceives the matter quite clearly from the acts and the proofs, he can pronounce judgement at once. He must, however, seek the observations of the promotor of justice and the defender of the bond if they were engaged in the trial.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Pronouncements of the Judge|
|Canon 1607.||A principal case which has been dealt with in judicial fashion is decided by the judge by a definitive judgement. An incidental matter is decided by an interlocutory judgement, without prejudice to can. 1589|
|Canon 1608.||§1 To give any judgement, the judge must have in his mind moral certainty about the matter to be decided in the judgement.
§2 The judge must derive this certainty from the acts of the case and from the proofs.
§3 The judge must conscientiously weigh the evidence, with due regard for the provisions of law about the efficacy of certain evidence.
§4 A judge who cannot arrive at such certainty is to pronounce that the right of the plaintiff is not established and is to find for the respondent except in a case which enjoys the favour of law, when he is to pronounce in its favour.
|Canon 1609.||§1 The presiding judge of a collegiate tribunal decides the day and time when it is to meet for discussion. Unless a special reason requires otherwise, the meeting is to be at the tribunal office.
§2 On the day appointed for the meeting, the individual judges are to bring their written conclusions on the merits of the case, with the reasons in law and in fact for reaching their conclusions. These conclusions are to be added to the acts of the case and to be kept in secrecy.
§3 Having invoked the divine Name, they are to offer their conclusions in order, beginning always with the ‘ponens’ or ‘relator’ in the case, and then in order of precedence. Under the chairmanship of the presiding judge, they are to hold their discussion principally with a view to establishing what is to be stated in the dispositive part of the judgement.
§4 In the discussion, each one is permitted to depart from an original conclusion. A judge who does not wish to accede to the decision of the others can demand that, if there is an appeal, his or her conclusions be forwarded to the higher tribunal.
§5 If the judges do not wish, or are unable, to reach a decision in the first discussion, they can defer their decision to another meeting, but not beyond one week, unless the instruction of the case has to be completed in accordance with can. 1600.
|Canon 1610.||§1 If there is a sole judge, he will draw up the judgement.
§2 In a collegiate tribunal, the ‘ponens’ or ‘relator’ is to draw up the judgement, using as reasons those tendered by the individual judges in their discussion, unless the reasons to be preferred have been defined by a majority of the judges. The judgement must then be submitted to the individual judges for their approval.
§3 The judgement is to be issued not later than one month from the day on which the case was decided, unless in a collegiate tribunal the judges have for grave reasons stipulated a longer time.
|Canon 1611.||The judgement must:
1° define the controversy raised before the tribunal, giving appropriate answers to the individual questions;
2° determine the obligations of the parties arising from the trial and the manner in which these are to be fulfilled
3° set out the reasons or motives, both in law and in fact, upon which the dispositive part of the judgement is based;
4° apportion the expenses of the suit.
|Canon 1612.||§1 The judgement, after the invocation of the divine Name must state in order the judge or tribunal, and the plaintiff, respondent and procurator, with names and domiciles duly indicated. It is also to name the promotor of justice and the defender of the bond if they were engaged in the trial.
§2 It must then briefly set out the alleged facts, with the conclusions of the parties and the formulation of the doubt.
§3 Then follows the dispositive part of the judgement, prefaced by the reasons which support it.
§4 It ends with the date and the place in which it was given, and with the signature of the judge or, in the case of a collegiate tribunal, of all the judges, and of the notary.
|Canon 1613.||The rules set out above for a definitive judgement are to be adapted also to interlocutory judgements.|
|Canon 1614.||A judgement is to be published as soon as possible, with an indication of the ways in which it can be challenged. Before publication it has no effect, even if the dispositive part may, with the permission of the judge, have been notified to the parties.|
|Canon 1615.||The publication or notification of the judgement can be effected by giving a copy of the judgement to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509.|
|Canon 1616.||§1 A judgement must be corrected or completed by the tribunal which gave it if, in the text of a judgement, there is an error in calculations, or a material error in the transcription of either the dispositive part or the presentation of the facts or the pleadings of the parties, or if any of the items required by can. 1612, §4 are omitted. This is to be done either at the request of the parties or ex officio, but always after having consulted the parties and by a decree appended to the foot of the judgement.
§2 If one party is opposed, an incidental question is to be decided by a decree.
|Canon 1617.||Other pronouncements of a judge apart from the judgement, are decrees. If they are more than mere directions about procedure, they have no effect unless they give at least a summary of their reasons or refer to motives expressed in another act.|
|Canon 1618.||An interlocutory judgement or a decree has the force of a definitive judgement if, in respect of at least one of the parties, it prevents the trial, or brings to an end the trial itself or any instance of it.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Challenging of the Sentence » Complaint of nullity against the sentence|
|Canon 1619.||Without prejudice to cann. 1622 and 1623, whenever a case concerns the good of private individuals, acts which are null with a nullity established by positive law are validated by the judgement itself, if the nullity was known to the party making the plaint and was not raised with the judge before the judgement.|
|Canon 1620.||A judgement is null with a nullity which cannot be remedied,
1° it was given by a judge who was absolutely non-competent;
2° it was given by a person who has no power to judge in the tribunal in which the case was decided;
3° the judge was compelled by force or grave fear to deliver judgement;
4° the trial took place without the judicial plea mentioned in can. 1501, or was not brought against some party as respondent;
5° it was given between parties of whom at least one has no right to stand before the court;
6° someone acted in another’s name without a lawful mandate;
7° the right of defence was denied to one or other party;
8° the controversy has not been even partially decided.
|Canon 1621.||In respect of the nullity mentioned in can. 1620, a plaint of nullity can be made in perpetuity by means of an exception, or within ten years of the date of publication of the judgement by means of an action before the judge who delivered the judgement.|
|Canon 1622.||A judgement is null with a nullity which is simply remediable, if:
1° contrary to the requirements of can. 1425, §1, it was not given by the lawful number of judges;
2° it does not contain the motives or reasons for the decision;
3° it lacks the signatures prescribed by the law;
4° it does not contain an indication of the year, month, day and place it was given;
5° it is founded on a judicial act which is null and whose nullity has not been remedied in accordance with can. 1619;
6° it was given against a party who, in accordance with can. 1593, §2, was lawfully absent.
|Canon 1623.||In the cases mentioned in can. 1622, a plaint of nullity can be proposed within three months of notification of the publication of the judgement.|
|Canon 1624.||The judge who gave the judgement is to consider the plaint of its nullity. If the party fears that the judge who gave the judgement is biased, and consequently considers him suspect, he or she can demand that another judge take his place in accordance with can. 1450.|
|Canon 1625.||Within the time limit established for appeal, a plaint of nullity can be proposed together with the appeal.|
|Canon 1626.||§1 A plaint of nullity can be made not only by parties who regard themselves as injured, but also by the promotor of justice and the defender of the bond, whenever they have a right to intervene.
§2 Within the time-limit established in can. 1623, the judge himself can retract or correct an invalid judgement he has given, unless in the meantime an appeal joined to a plaint of nullity has been lodged, or the nullity has been remedied by the expiry of the time-limit mentioned in can. 1623.
|Canon 1627.||Cases concerning a plaint of nullity can be dealt with in accordance with the norms for an oral contentious process.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Challenging of the Sentence » Appeal|
|Canon 1628.||Without prejudice to the provisions of can. 1629, a party who considers him or herself to be injured by a judgement has a right to appeal from the judgement to a higher judge; in cases in which their presence is required, the promotor of justice and the defender of the bond have likewise the right to appeal.|
|Canon 1629.||No appeal is possible against:
1° a judgement of the Supreme Pontiff himself, or a judgement of the Apostolic
2° a judgement which is null, unless the appeal is lodged together with a plaint of nullity, in accordance with can. 1625;
3° a judgement which has become an adjudged matter
4° a decree of the judge or an interlocutory judgement, which doesnot have the force of a definitive judgement, unless the appeal is lodged together with an appeal against the definitive judgement;
5° a judgement or a decree in a case in which the law requires that the matter be settled with maximum expedition.
|Canon 1630.||§1 The appeal must be lodged with the judge who delivered the judgement, within a peremptory time-limit of fifteen canonical days from notification of the publication of the judgement.
§2 If it is made orally, the notary is to draw up the appeal in writing in the presence of the appellant.
|Canon 1631.||If a question arises about the right of appeal, the appeal tribunal is to determine it with maximum expedition, in accordance with the norms for an oral contentious process.|
|Canon 1632.||§1 If there is no indication of the tribunal to which the appeal is directed, it is presumed to be made of the tribunal mentioned in cann. 1438 and 1439.
§2 If the other party has resorted to some other appeal tribunal, the tribunal which is of the higher grade is to determine the case, without prejudice to can. 1415.
|Canon 1633.||The appeal is to be pursued before the appeal judge within one month of its being forwarded, unless the originating judge allows the party a longer time to pursue it.|
|Canon 1634.||§1 To pursue the appeal, it is required and is sufficient that the party request the assistance of the higher judge to amend the judgement which is challenged, enclosing a copy of the judgement and indicating the reasons for the appeal.
§2 If the party is unable to obtain a copy of the appealed judgement from the originating tribunal within the canonical time-limit, this timelimit is in the meantime suspended. The problem is to be made known to the appeal judge, who is to oblige the originating judge by precept to fulfil his duty as soon as possible.
§3 In the meantime, the originating judge must forward the acts to the appeal court in accordance with can. 1474.
|Canon 1635.||The appeal is considered to be abandoned if the time-limits for an appeal before either the originating judge or the appeal judge have expired without action being taken.|
|Canon 1636.||§1 The appellant can renounce the appeal, with the effects mentioned in can. 1525.
§2 Unless the law provides otherwise, an appeal made by the defender of the bond or the promotor of justice, can be renounced by the defender of the bond or the promotor of justice of the appeal tribunal.
|Canon 1637.||§1 An appeal made by the plaintiff benefits the respondent, and vice versa.
§2 If there are several respondents or plaintiffs, and the judgement is challenged by only one of them, or is made against only one of them, the challenge is considered to be made by all and against all whenever the thing requested is an individual one or the obligation is a joint one.
§3 If one party challenges a judgement in regard to one ground, the other party can appeal incidentally on the other grounds, even if the canonical time-limit for the appeal has expired. This incidental case is to be appealed within a peremptory time-limit of fifteen days from the day of notification of the principal appeal.
§4 Unless the contrary is clear, an appeal is presumed to be against all the grounds of the judgement.
|Canon 1638.||An appeal suspends the execution of the judgement.|
|Canon 1639.||§1 Without prejudice to the provision of can. 1683, a new ground cannot be introduced at the appeal grade, not even by way of the useful accumulation of grounds. So the joinder of the issue can concern itself only with the confirmation or the reform of the first judgement, either in part or in whole.
§2 New evidence is admitted only in accordance with can. 1600.
|Canon 1640.||With the appropriate adjustments, the procedure at the appeal grade is to be the same as in first instance. Unless the evidence is to be supplemented, however,
once the issue has been joined in accordance with can. 1513 §1 and can. 1639 §1, the judges are to proceed immediately to the discussion of the case and the judgement.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Res Iudicata and Restitutio in Integrum » Res iudicata|
|Canon 1641.||Without prejudice to can. 1643, an adjudged matter occurs when:
1° there are two conforming judgements between the same parties about the same matter and on the same grounds;
2° no appeal was made against the judgement within the canonical time-limit;
3° the trial has been abated or renounced in the appeal grade;
4° a definitive judgement has been given from which, in accordance with can. 1629, there is no appeal.
|Canon 1642.||§1 An adjudged matter has the force of law and cannot be challenged directly, except in accordance with can. 1645 §1.
§2 It has the effect of law between the parties; it gives the right to an action arising from the judgement and to an exception of an adjudged matter; to prevent a new introduction of the same case, the judge can even declare such an exception ex officio.
|Canon 1643.||Cases concerning the status of persons never become an adjudged matter, not excepting cases which concern the separation of spouses.|
|Canon 1644.||§1 If two conforming sentences have been given in cases concerning the status of persons, recourse to a tribunal of appeal can be made at any time, to be supported by new and serious evidence or arguments which are to be submitted within a peremptory time-limit of thirty days from the time the challenge was made.
Within one month of receiving the new evidence and arguments, the appeal tribunal must declare by a decree whether or not a new presentation of the case is to be admitted.
§2 Recourse to a higher tribunal to obtain a new presentation of the case does not suspend the execution of the judgement, unless the law provides otherwise or the appeal tribunal orders a suspension in accordance with can. 1650 §3.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Res Iudicata and Restitutio in Integrum » Restitutio in integrum|
|Canon 1645.||§1 Against a judgement which has become an adjudged matter there can be a total reinstatement, provided it is clearly established that the judgement was unjust.
§2 Injustice is not, however, considered clearly established unless:
1° the judgement is so based on evidence which is subsequently shown to be false, that without this evidence the dispositive part of the judgement could not be sustained;
2° documents are subsequently discovered by which new facts demanding a contrary decision are undoubtedly proven;
3° the judgement was given through the deceit of one party to the harm of the other;
4° a provision of a law which was not merely procedural was evidently neglected;
5° the judgement runs counter to a preceding decision which has become an adjudged matter.
|Canon 1646.||§1 Total reinstatement based on the reasons mentioned in can. 1645 §2, nn. 1-3, is to be requested from the judge who delivered the judgement within three months from the day on which these reasons became known.
§2 Total reinstatement based on the reasons mentioned in can. 1645 §2, nn. 4 and 5, is to be requested from the appeal tribunal within three months of notification of the publication of the judgement. In the case mentioned in can. 1645 §2, n. 5, if the preceding decision is not known until later, the time-limit begins at the time the knowledge was obtained.
§3 The time-limits mentioned above do not apply for as long as the aggrieved party is a minor.
|Canon 1647.||§1 A plea for total reinstatement suspends the execution of a judgements which has not yet begun.
§2 If there are probable indications leading the judge to suspect that the plea was made to cause delays in execution, he may decide that the judgement be executed.
The person seeking total reinstatement is, however, to be given suitable guarantees that, if it is granted, he or she will be indemnified.
|Canon 1648.||Where total reinstatement is granted, the judge must pronounce judgement of the merits of the case.|
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Judicial Expenses and Gratuitous Legal Assistance|
|Canon 1649.||§1 The Bishop who is responsible for governing the tribunal is to establish norms concerning:
1° declarations that parties are liable for the payment or reimbursement of judicial expenses;
2° the honorariums for advocates, experts and interpreters, and the expenses of witnesses;
3° the granting of free legal aid and the reduction of expenses;
4° the payment of damages owed by a person who not merely lost the case, but was rash in having recourse to litigation;
5° the money to be deposited, or the guarantee to be given, for the payment of expenses and the compensation of damages.
§2 No distinct appeal exists from a pronouncement concerning expenses, honorariums and damages. The parties can, however, have recourse within ten days to the same judge, who can change the sum involved.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Execution of the Sentence|
|Canon 1650.||§1 A judgement which becomes adjudged matter can be executed, without prejudice to the provision of can. 1647.
§2 The judge who delivered the judgement and, if there has been an appeal, the appeal judge, can either ex officio or at the request of a party order the provisional execution of a judgement which has not yet become an adjudged matter, adding if need be appropriate guarantees when it is a matter of provisions or payments concerning necessary support. They can also do so for some other just and urgent reason.
§3 If the judgement mentioned in §2 is challenged, the judge who must deal with the challenge can suspend the execution or subject it to a guarantee, if he sees that the challenge is probably well founded and that irreparable harm could result from execution.
|Canon 1651.||Execution cannot take place before there is issued the judge’s executing decree directing that the judgement be executed. Depending on the nature of the case, this decree is to be either included in the judgement itself or issued separately.|
|Canon 1652.||If the execution of the judgement requires a prior statement of reasons, this is to be treated as an incidental question, to be decided by the judge who gave the judgement which is to be executed.|
|Canon 1653.||§1 Unless particular law provides otherwise, the Bishop of the diocese in which the first instance judgement was given must, either personally or through another, execute the judgement.
§2 If he refuses or neglects to do so, the execution of the judgement, at the request of an interested party or ex officio, belongs to the authority to which the appeal tribunal is subject in accordance with can. 1439 §3.
§3 Between religious, the execution of the judgement is the responsibility of the
Superior who gave the judgement which is to be executed, or who delegated the judge.
|Canon 1654.||§1 The executor must execute the judgement according to the obvious sense of the words, unless in the judgement itself something is left to his discretion.
§2 He can deal with exceptions concerning the manner and the force of the execution, but not with the merits of the case. If he has ascertained from some other source that the judgement is null or manifestly unjust according to cann. 1620, 1622 and 1645, he is to refrain from executing the judgement, and is instead to refer the matter to the tribunal which delivered the judgement and to notify the parties.
|Canon 1655.||§1 In real actions, whenever it is decided that a thing belongs to the plaintiff, it is to be handed over to the plaintiff as soon as the matter has become an adjudged matter.
§2 In personal actions, when a guilty person is condemned to hand over a movable possession or to pay money, or to give or do something, the judge in the judgement itself, or the executor according to his discretion and prudence, is to assign a time limit for the fulfilment of the obligation. This time-limit is to be not less than fifteen days nor more than six months.
|Processes » The Contentious Trial » The Oral Contentious Process|
|Canon 1656.||§1 The oral contentious process dealt with in this section can be used in all cases which are not excluded by law, unless a party requests an ordinary contentious process.
§2 If the oral process is used in cases other than those permitted by the law, the judicial acts are null.
|Canon 1657.||An oral contentious process in first instance is made before a sole judge, in accordance with can. 1424.|
|Canon 1658.||§1 In addition to the matters enumerated in can. 1504, the petition which introduces the suit must:
1° set forth briefly, fully and clearly the facts on which the plaintiff’s pleas are based;
2° indicate the evidence by which the plaintiff intends to demonstrate the facts and which cannot be brought forward with the petition; this is to be done in such a way that the evidence can immediately be gathered by the judge.
§2 Documents which support the plea must be added to the petition, at least in authentic copy.
|Canon 1659.||§1 If an attempt at mediation in accordance with can. 1446 §2 has proven fruitless, the judge, if he deems that the petition has some foundation, is within three days to add a decree at the foot of the petition. In this decree he is to order that a copy of the plea be notified to the respondent, with the right to send a written reply to the tribunal office within fifteen days.
§2 This notification has the effects of a judicial summons that are as mentioned in can. 1512.
|Canon 1660.||If the exceptions raised by the respondent so require, the judge is to assign the plaintiff a time-limit for a reply, so that from the material advanced by each he can clearly discern the object of the controversy.|
|Canon 1661.||§1 When the time-limits mentioned in cann. 1659 and 1660 have expired, the judge, after examining the acts, is to determine the point at issue. He is then to summon all who must be present to a hearing, which is to be held within thirty days; for the parties, he is to add the formulation of the point at issue.
§2 In the summons the parties are to be informed that, to support their assertions, they can submit a short written statement to the tribunal at least three days before the hearing.
|Canon 1662.||In the hearing, the questions mentioned in can. 1459--1464 are considered first.|
|Canon 1663.||§1 The evidence is assembled during the hearing, without prejudice to the provision of can. 1418.
§2 A party and his or her advocate can assist at the examination of the other parties, of the witnesses and of the experts.
|Canon 1664.||The replies of the parties, witnesses and experts, and the pleas and exceptions of the advocates, are to be written down by the notary in summary fashion, restricting the record to those things which bear on the substance of the controversy. This record is to be signed by the persons testifying.|
|Canon 1665.||The judge can admit evidence which is not alleged or sought in the plea or the reply, but only in accordance with can. 1452. After the hearing of even one witness, however, the judge can admit new evidence only in accordance with can.
|Canon 1666.||If all the evidence cannot be collected during the hearing, a further hearing is to be set.|
|Canon 1667.||When the evidence has been collected, an oral discussion is to take place at the same hearing.|
|Canon 1668.||§1 At the conclusion of the hearing, the judge can decide the case forthwith, unless it emerges from the discussion that something needs to be added to the instruction of the case, or that there is something which prevents a judgement being correctly delivered. The dispositive part of the judgement is to be read immediately in the presence of the parties.
§2 Because of the difficulty of the matter, or for some other just reason the decision of the tribunal can be deferred for up to five canonical days.
§3 The full text of the judgement, including the reasons for it, is to be notified to the parties as soon as possible, normally within fifteen days.
|Canon 1669.||If the appeal tribunal discerns that a lower tribunal has used the oral contentious procedure in cases which are excluded by law, it is to declare the judgement invalid and refer the case back to the tribunal which delivered the judgement.|
|Canon 1670.||In all other matters concerning procedure, the provisions of the canons on ordinary contentious trials are to be followed. In order to expedite matters, however, while safeguarding justice, the tribunal can, by a decree and for stated reasons, derogate from procedural norms which are not prescribed for validity.|
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The competent forum|
|Canon 1671.||§1 Marriage cases of the baptized belong to the ecclesiastical judge by proper right.
§2. Cases regarding merely the civil effects of marriage belong to a civil magistrate, unless the particular law establishes that such cases, if carried out in an incidental or accessory manner, can be recognized by and determined by an ecclesiastical judge.
|Canon 1672.||In cases regarding the nullity of marriage not reserved to the Apostolic
See, the competencies are: 1° the tribunal of the place in which the marriage was celebrated; 2° the tribunal of the place in which either or both parties have a domicile or a quasi-domicile; 3° the tribunal of the place in which in fact most of the proofs must be collected.
|Canon 1673.||§1 In each diocese, the judge in first instance for cases of nullity or marriage for which the law does not expressly make an exception is the diocesan bishop, who can exercise judicial power personally or through others, according to the norm of law.
§2 The bishop is to establish a diocesan tribunal for his diocese to handle cases of nullity of marriage without prejudice to the faculty of the same bishop to approach another nearby diocesan or interdiocesan tribunal.
§3 Cases of nullity of marriage are reserved to a college of three judges. A judge who is a cleric must preside over the college, but the other judges may be laypersons.
§4 The bishop moderator, if a collegial tribunal cannot be constituted in the diocese or in a nearby tribunal chosen according to the norm of §2, is to entrust cases to a sole clerical judge who, where possible, is to employ two assessors of upright life, experts in juridical or human sciences, approved by the bishop for this task; unless it is otherwise evident, the same single judge has competency for those things attributed to the college, the praeses, or the ponens.
§5 The tribunal of second instance must always be collegiate for validity, according to the prescript of the preceding §3.
§6 The tribunal of first instance appeals to the metropolitan tribunal of second instance without prejudice to the prescripts of cann. 1438-1439 and 1444.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The right to challenge a marriage|
|Canon 1674.||§1 The following are qualified to challenge a marriage: 1° the spouses; 2° the promoter of justice when nullity has already become public, if the convalidation of the marriage is not possible or expedient.
§2 A marriage which was not accused while both spouses were living cannot be accused after the death of either one or both of the spouses unless the question of validity is prejudicial to the resolution of another controversy either in the canonical forum or in the civil forum.
§3 If a spouse dies while the case is pending, however, can. 1518 is to be observed.
|Canon 1675.||The judge, before he accepts a case, must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The duty of the judges|
|Canon 1676.||§1 After receiving the libellus, the judicial vicar, if he considers that it has some basis, admits it and, by a decree appended to the bottom of the libellus itself, is to order that a copy be communicated to the defender of the bond and, unless the libellus was signed by both parties, to the respondent, giving them a period of fifteen days to express their views on the petition.
§2 After the above-mentioned deadline has passed, and after the other party has been admonished to express his or her views if and insofar as necessary, and after the defender of the bond has been heard, the judicial vicar is to determine by his decree the formula of the doubt and is to decide whether the case is to be treated with the ordinary process or with the briefer process according to can. 1683-1687. This decree is to be communicated immediately to the parties and the defender of the bond.
§3 If the case is to be handled through the ordinary process, the judicial vicar, by the same decree, is to arrange the constitution of a college of judges or of a single judge with two assessors according to can. 1673, §4.
§4 However, if the briefer process is decided upon, the judicial vicar proceeds according to the norm of can. 1685.
§5 The formula of doubt must determine by which ground or grounds the validity of the marriage is challenged.
|Canon 1677.||§1 The defender of the bond, the legal representatives of the parties, as well as the promoter of justice, if involved in the trial, have the following rights: 1° to be present at the examination of the parties, the witnesses, and the experts, without
prejudice to the prescript of can. 1559; 2° to inspect the judicial acts, even those not yet published, and to review the documents presented by the parties.
§2 The parties cannot be present at the examination mentioned in §1, n. 1.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » Proofs|
|Canon 1678.||§1 In cases of the nullity of marriage, a judicial confession and the declarations of the parties, possibly supported by witnesses to the credibility of the parties, can have the force of full proof, to be evaluated by the judge after he has considered all the indications and supporting factors, unless other elements are present which weaken them.
§2 In the same cases, the testimony of one witness can produce full proof if it concerns a qualified witness making a deposition concerning matters done ex officio, or unless the circumstances of things and persons suggest it.
§3 In cases of impotence or defect of consent because of mental illness or an anomaly of a psychic nature, the judge is to use the services of one or more experts unless it is clear from the circumstances that it would be useless to do so; in other cases the prescript of can. 1574 is to be observed.
§4 Whenever, during the instruction of a case, a very probable doubt arises as to whether the marriage was ever consummated, the tribunal, having heard both parties, can suspend the case of nullity, complete the instruction for a dispensation super rato, and then transmit the acts to the Apostolic See together with a petition for a dispensation from either one or both of the spouses and the votum of the tribunal and the bishop.
|Canon 1679.||The sentence that first declared the nullity of the marriage, once the terms as determined by can. 1630-1633 have passed, becomes executive.|
|Canon 1680.||§1 The party who considers himself or herself aggrieved, as well as the promoter of justice and the defender of the bond, have the right to introduce a complaint of nullity of the judgment or appeal against the sentence, according to can. 1619-1640.
§2 After the time limits established by law for the appeal and its prosecution have passed, and after the judicial acts have been received by the tribunal of higher instance, a college of judges is established, the defender of the bond is designated, and the parties are admonished to put forth their observations within the prescribed time limit; after this time period has passed, if the appeal clearly appears merely dilatory, the collegiate tribunal confirms the sentence of the prior instance by decree.
§3 If an appeal is admitted, the tribunal must proceed in the same manner as the first instance with the appropriate adjustments.
§4 If a new ground of nullity of the marriage is alleged at the appellate level, the tribunal can admit it and judge it as if in first instance.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The sentence and the appeal|
|Canon 1681.||If a sentence has become effective, one can go at any time to a tribunal of the third level for a new proposition of the case according to the norm of can. 1644, provided new and grave proofs or arguments are brought forward within the peremptory time limit of thirty days from the proposed challenge.|
|Canon 1682.||§1 After the sentence declaring the nullity of the marriage has become effective, the parties whose marriage has been declared null can contract a new marriage unless a prohibition attached to the sentence itself or established by the local ordinary forbids this.
§2 As soon as the sentence becomes effective, the judicial vicar must notify the local ordinary of the place in which the marriage took place. The local ordinary must take care that the declaration of the nullity of the marriage and any possible prohibitions are noted as soon as possible in the marriage and baptismal registers.
|Canon 1683.||The diocesan bishop himself is competent to judge cases of the nullity of marriage with the briefer process whenever:
1° the petition is proposed by both spouses or by one of them, with the consent of the other;
2° circumstance of things and persons recur, with substantiating testimonies and records, which do not demand a more accurate inquiry or investigation, and which render the nullity manifest.
|Canon 1684.||The libellus introducing the briefer process, in addition to those things enumerated in can. 1504, must: 1° set forth briefly, fully, and clearly the facts on which the petition is based; 2° indicate the proofs, which can be immediately collected by the judge; 3° exhibit the documents, in an attachment, upon which the petition is based.|
|Canon 1685.||The judicial vicar, by the same decree which determines the formula of the doubt, having named an instructor and an assessor, cites all who must take part to a session, which in turn must be held within thirty days according to can. 1686.|
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The documentary process|
|Canon 1686.||The instructor, insofar as possible, collects the proofs in a single session and establishes a time limit of fifteen days to present the observations in favor of the bond and the defense briefs of the parties, if there are any.|
|Canon 1687.||§1 After he has received the acts, the diocesan bishop, having consulted with the instructor and the assessor, and having considered the observations of the defender of the bond and, if there are any, the defense briefs of the parties, is to issue the sentence if moral certitude about the nullity of marriage is reached. Otherwise, he refers the case to the ordinary method.
§2 The full text of the sentence, with the reasons expressed, is to be communicated to the parties as swiftly as possible.
§3 An appeal against the sentence of the bishop is made to the metropolitan or to the
Roman Rota; if, however, the sentence was rendered by the metropolitan, the appeal is made to the senior suffragan; if against the sentence of another bishop who does not have a superior authority below the Roman Pontiff, appeal is made to the bishop selected by him in a stable manner.
§4 If the appeal clearly appears merely dilatory, the metropolitan or the bishop mentioned in §3, or the dean of the Roman Rota, is to reject it by his decree at the outset; if the appeal is admitted, however, the case is remitted to the ordinary method at the second level.
|Canon 1688.||After receiving a petition proposed according to the norm of can. 1677, the diocesan bishop or the judicial vicar or a judge designated by him can declare the nullity of a marriage by sentence if a document subject to no contradiction or exception clearly establishes the existence of a diriment impediment or a defect of legitimate form, provided that it is equally certain that no dispensation was given, or establishes the lack of a valid mandate of a proxy. In these cases, the formalities of the ordinary process are omitted except for the citation of the parties and the intervention of the defender of the bond.
[NB see Authentic Interpretation of the former canon 1686 (pre-Mitis Iudex Dominus Iesus), 11.VII.1984]
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » General norms|
|Canon 1689.||§1 If the defender of the bond prudently thinks that either the flaws mentioned in can. 1688 or the lack of a dispensation are not certain, the defender of the bond must appeal against the declaration of nullity to the judge of second instance; the acts must be sent to the appellate judge who must be advised in writing that a documentary process is involved.
§2 The party who considers himself or herself aggrieved retains the right of appeal.
|Canon 1690.||The judge of second instance, with the intervention of the defender of the bond and after having heard the parties, will decide in the same manner as that mentioned in can. 1688 whether the sentence must be confirmed or whether the case must rather proceed according to the ordinary method of law; in the latter event the judge remands the case to the tribunal of first instance.|
|Canon 1691.||§1 In the sentence the parties are to be reminded of the moral and even civil obligations binding them toward one another and toward their children to furnish support and education.
§2 Cases for the declaration of the nullity of a marriage cannot be treated in the oral contentious process mentioned in can. 1656-1670.
§3. In other procedural matters, the canons on trials in general and on the ordinary contentious trial must be applied unless the nature of the matter precludes it; the special norms for cases concerning the status of persons and cases pertaining to the public good are to be observed.
[revised wording of cc. 1671-1691 according to m.p. Mitis Iudex Dominus Iesus,
|Processes » Certain Special Processes » Matrimonial Processes » Cases of separation of spouses|
|Canon 1692.||§1 Unless lawfully provided otherwise in particular places, the personal separation of baptised spouses can be decided by a decree of the diocesan Bishop, or by the judgement of a judge in accordance with the following canons.
§2 Where the ecclesiastical decision does not produce civil effects, or if it is foreseen that there will be a civil judgement not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts.
§3 If the case is also concerned with the merely civil effects of marriage, the judge is to endeavour, without prejudice to the provision of §2, to have the case brought before the civil court from the very beginning.
|Canon 1693.||§1 The oral contentious process is to be used, unless either party or the promotor of justice requests the ordinary contentious process.
§2 If the ordinary contentious process is used and there is an appeal, the tribunal of second instance is to proceed in accordance with can. 1682 §2, observing what has to be observed.
|Canon 1694.||In matters concerning the competence of the tribunal, the provisions of can. 1673 are to be observed.|
|Canon 1695.||Before he accepts the case, and whenever there appears to be hope of success, the judge is to use pastoral means to induce the parties to be reconciled and to resume their conjugal life.|
|Canon 1696.||Cases of separation of spouses also concern the public good; the promotor of justice must, therefore, always intervene, in accordance with can. 1433.|
|Processes » Certain Special Processes » Matrimonial Processes » Process for the dispensation of a marriage ratum et non consummatum|
|Canon 1697.||The parties alone, or indeed one of them even if the other is unwilling, have the right to seek the favour of a dispensation from a ratified and non-consummated marriage.|
|Canon 1698.||§1 Only the Apostolic See gives judgement on the fact of the non-consummation of a marriage and on the existence of a just reason for granting the dispensation.
§2 The dispensation, however, is given by the Roman Pontiff alone.
|Canon 1699.||§1 The diocesan Bishop of the place of domicile or quasidomicile of the petitioner is competent to accept the petition seeking the dispensation. If the request is well founded, he must arrange for the instruction of the process.
§2 If, however, the proposed case has special difficulties of a juridical or moral order, the diocesan Bishop is to consult the Apostolic See.
§3 Recourse to the Apostolic See is available against the decree of a Bishop who rejects the petition.
|Canon 1700.||§1 Without prejudice to the provisions of can. 1681, the Bishop is to assign the instruction of these processes, in a stable manner or case by case, to his own tribunal or to that of another diocese, or to a suitable priest.
§2 If, however, a judicial plea has been introduced to declare the nullity of the same marriage, the instruction of the process is to be assigned to the same tribunal.
|Canon 1701.||§1 In these processes the defender of the bond must always intervene.
§2 An advocate is not admitted, but the Bishop can, because of the difficulty of a case, allow the petitioner or respondent to have the assistance of an expert in the law.
|Canon 1702.||In the instruction of the process both parties are to be heard. As far as possible, and provided they can be reconciled with the nature of these processes, the canons concerning the collection of evidence in the ordinary contentious process and in cases of nullity of marriage are to be followed.|
|Canon 1703.||§1 There is no publication of the acts, but if the judge sees that, because of the evidence tendered, a serious obstacle stands in the way of the plea of the petitioner or the exception of the respondent, he can prudently make it known to the party concerned.
§2 To the party requesting it the judge can show a document which has been presented or evidence which has been received, and he can set a time for the production of arguments.
|Canon 1704.||§1 When the instruction is completed, the judge instructor is to give all the acts, together with a suitable report, to the Bishop. The Bishop is to express his
Opinion on the merits of the case in relation to the alleged fact of non-consummation, the adequacy of the reason for dispensation, and the opportuneness of the favour.
§2 If the instruction of the process has been entrusted to another tribunal in accordance with can. 1700, the observations in favour of the bond of marriage are to be prepared in that same tribunal. The Opinion spoken of in §1 is, however, the province of the Bishop who gave the commission and the judge instructor is to give him, together with the acts, a suitable report on the case.
|Canon 1705.||§1 The Bishop is to transmit all the acts to the Apostolic See together with his Opinion and the observations of the defender of the bond.
§2 If, in the judgement of the Apostolic See, a supplementary instruction is required, this will be notified to the Bishop, with a statement of the items on which the acts are to be supplemented.
§3 If, however, the answer of the Apostolic See is that the non-consummation is not proven from the evidence produced, then the expert in law mentioned in can. 1701
§2 can inspect the acts of the case, though not the Opinion of the Bishop, in the tribunal office, in order to decide whether anything further of importance can be brought forward to justify another submission of the petition.
|Canon 1706.||The rescript of dispensation is sent by the Apostolic See to the Bishop. He is to notify the parties of the rescript, and also as soon as possible direct the parish priests of the place where the marriage was contracted and of the place where baptism was received, to make a note of the granting of the dispensation in the registers of marriage and baptism.|
|Processes » Certain Special Processes » Matrimonial Processes » Process in the presumed death of a spouse|
|Canon 1707.||§1 Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not regarded as free from the bond of marriage until the diocesan Bishop has issued a declaration that death is presumed.
§2 The diocesan Bishop can give the declaration mentioned in §1 only if, after making suitable investigations, he has reached moral certainty concerning the death of the spouse from the depositions of witnesses, from hearsay and from other indications. The mere absence of the spouse, no matter for how long a period, is not sufficient.
§3 In uncertain and involved cases, the Bishop is to consult the Apostolic See.
|Processes » Certain Special Processes » Cases for Declaring the Nullity of Sacred Ordination|
|Canon 1708.||The right to impugn the validity of sacred ordination is held by the cleric himself, or by the Ordinary to whom the cleric is subject, or by the Ordinary in whose diocese he was ordained.|
|Canon 1709.||§1 The petition must be sent to the competent Congregation, which will decide whether the case is to be determined by the Congregation of the Roman Curia, or by a tribunal designated by it.
§2 Once the petition has been sent, the cleric is by the law itself forbidden to exercise orders.
|Canon 1710.||If the Congregation remits the case to a tribunal, the canons concerning trials in general and the ordinary contentious trial are to be observed, unless the nature of the matter requires otherwise and without prejudice to the provisions of this title.|
|Canon 1711.||In these cases the defender of the bond has the same rights and is bound by the same duties as the defender of the bond of marriage.|
|Canon 1712.||After a second judgement confirming the nullity of the sacred ordination, the cleric loses all rights proper to the clerical state and is freed from all its obligations.|
|Processes » Certain Special Processes » Methods of Avoiding Trials|
|Canon 1713.||In order to avoid judicial disputes, agreement or reconciliation can profitably be adopted, or the controversy can be submitted to the judgement of one or more arbiters.|
|Canon 1714.||The norms for agreements, for mutual promises to abide by an arbiter’s award, and for arbitral judgements are to be selected by the parties. If the parties have not chosen any, they are to use the law established by the Episcopal Conference, if such exists, or the civil law in force in the place where the pact is made.|
|Canon 1715.||§1 Agreements and mutual promises to abide by an arbiter’s award cannot validly be employed in matters which pertain to the public good, and in other matters in which the parties are not free to make such arrangements.
§2 Whenever the matter concerned demands it, in questions concerning temporal ecclesiastical goods the formalities established by the law for the alienation of ecclesiastical goods are to be observed.
|Canon 1716.||§1 If the civil law does not recognise the force of an arbitral judgement unless it is confirmed by a judge, an arbitral judgement in an ecclesiastical controversy has no force in the canonical forum unless it is confirmed by an ecclesiastical judge of the place in which it was given.
§2 If, however, the civil law admits of a challenge to an arbitral judgement before a civil judge, the same challenge may be brought in the canonical forum before an ecclesiastical judge who is competent to judge the controversy at first instance.
|Processes » The Penal Process » The preliminary investigation|
|Canon 1717.||§1 Whenever the Ordinary receives information, which has at least the semblance of truth, about an offence, he is to enquire carefully, either personally or through some suitable person, about the facts and circumstances, and about the imputability of the offence, unless this enquiry would appear to be entirely superfluous.
§2 Care is to be taken that this investigation does not call into question anyone’s good name.
§3 The one who performs this investigation has the same powers and obligations as an auditor in a process. If, later, a judicial process is initiated, this person may not take part in it as a judge.
|Canon 1718.||§1 When the facts have been assembled, the Ordinary is to decide:
1° whether a process to impose or declare a penalty can be initiated;
2° whether this would be expedient, bearing in mind can. 1341;
3° whether a judicial process is to be used or, unless the law forbids it, whether the matter is to proceed by means of an extra-judicial decree.
§2 The Ordinary is to revoke or change the decree mentioned in §1 whenever new facts indicate to him that a different decision should be made.
§3 In making the decrees referred to in §§1 and 2, the Ordinary, if he considers it prudent, is to consult two judges or other legal experts.
§4 Before making a decision in accordance with §1, the Ordinary is to consider whether, to avoid useless trials, it would be expedient, with the parties’ consent, for himself or the investigator to make a decision, according to what is good and equitable, about the question of harm.
|Canon 1719.||The acts of the investigation, the decrees of the Ordinary by which the investigation was opened and closed, and all those matters which preceded the investigation, are to be kept in the secret curial archive, unless they are necessary for the penal process.|
|Processes » The Penal Process » The development of the process|
|Canon 1720.||If the Ordinary believes that the matter should proceed by way of an extra-judicial decree:
1° he is to notify the accused of the allegation and the evidence, and give an opportunity for defence, unless the accused, having been lawfully summoned, has failed to appear;
2° together with two assessors, he is accurately to weigh all the evidence and arguments;
3° if the offence is certainly proven and the time for criminal action has not elapsed, he is to issue a decree in accordance with can. 1342-1350, outlining at least in summary form the reasons in law and in fact.
|Canon 1721.||§1 If the Ordinary decrees that a judicial penal process is to be initiated, he is to pass the acts of the investigation to the promotor of justice, who is to present to the judge a petition of accusation in accordance with cann. 1502 and 1504.
§2 Before a higher tribunal, the promotor of justice constituted for that tribunal adopts the role of plaintiff.
|Canon 1722.||At any stage of the process, in order to prevent scandal, protect the freedom of the witnesses and safeguard the course of justice, the Ordinary can, after consulting the promotor of justice and summoning the accused person to appear, prohibit the accused from the exercise of the sacred ministry or of some ecclesiastical office and position, or impose or forbid residence in a certain place or territory, or even prohibit public participation in the blessed Eucharist. If, however, the reason ceases, all these restrictions are to be revoked; they cease by virtue of the law itself as soon as the penal process ceases.|
|Canon 1723.||§1 When the judge summons the accused, he must invite the latter to engage an advocate, in accordance with can. 1481 §1, but within the time laid down by the judge.
§2 If the accused does not do this, the judge himself is to appoint an advocate before the joinder of the issue, and this advocate will remain in office for as long as the accused has not engaged an advocate.
|Canon 1724.||§1 At the direction or with the consent of the Ordinary who decided that the process should be initiated, the promotor of justice in any grade of the trial can resign from the case.
§2 For validity, this resignation must be accepted by the accused person, unless he or she has been declared absent from the trial.
|Canon 1725.||In the argumentation of the case, whether done in writing or orally, the accused person or the advocate or procurator of the accused, always has the right to write or speak last.|
|Canon 1726.||If in any grade or at any stage of a penal trial, it becomes quite evident that the offence has not been committed by the accused, the judge must declare this in a judgement and acquit the accused, even if it is at the same time clear that the period for criminal proceedings has elapsed.|
|Canon 1727.||§1 The offender can appeal, even if discharged in the judgement only because the penalty was facultative, or because the judge used the power mentioned in cann. 1344 and 1345.
§2 The promotor of justice can appeal whenever he considers that the reparation of scandal or the restitution of justice has not been sufficiently provided for.
|Canon 1728.||§1 Without prejudice to the canons of this title, and unless the nature of the case requires otherwise, in a penal trial the judge is to observe the canons concerning judicial procedures in general, those concerning the ordinary contentious process, and the special norms about cases which concern the public good.
§2 The accused person is not bound to admit to an offence, nor may the oath be administered to the accused.
|Processes » The Penal Process » Action to repair damages|
|Canon 1729.||§1 In accordance with can. 1596, a party who has suffered harm from an offence can bring a contentious action for making good the harm in the actual penal case itself.
§2 The intervention of the harmed party mentioned in §1 is no longer admitted if the intervention was not made in the first instance of the penal trial.
§3 An appeal in a case concerning harm is made in accordance with cann.
1628--1640, even if an appeal cannot be made in the penal case itself. If, however, there is an appeal on both headings, there is to be only one trial, even though the appeals are made by different persons, without prejudice to the provision of Can.
|Canon 1730.||§1 To avoid excessive delays in a penal trial, the judge can postpone the trial concerning harm until he has given a definitive judgement in the penal trial.
§2 When the judge does this he must, after giving judgement in the penal trial, hear the case concerning harm, even though the penal trial is still pending because of a proposed challenge to it, or even though the accused has been acquitted, when the reason for the acquittal does not take away the obligation to make good the harm.
|Canon 1731.||A judgement given in a penal trial, even though it has become an adjudged matter, in no way creates a right for a party who has suffered harm, unless this party has intervened in accordance with can. 1733 |
|Processes » The Method of Proceeding in Administrative Recourse and in the Removal or Transfer of Pastors » Recourse Against Administrative Decrees|
|Canon 1732.||Whatever is laid down in the canons of this section concerning decrees, is also to be applied to all singular administrative acts given in the external forum outside a judicial trial, except for those given by the Roman Pontiff himself or by an
|Canon 1733.||§1 When a person believes that he or she has been injured by a decree, it is greatly to be desired that contention between that person and the author of the decree be avoided, and that care be taken to reach an equitable solution by mutual consultation, possibly using the assistance of serious-minded persons to mediate and study the matter. In this way, the controversy may by some suitable method be avoided or brought to an end.
§2 The Episcopal Conference can prescribe that in each diocese there be established a permanent office or council which would have the duty, in accordance with the norms laid down by the Conference, of seeking and suggesting equitable solutions.
Even if the Conference has not demanded this, the Bishop may establish such an office or council.
§3 The office or council mentioned in §2 is to be diligent in its work principally when the revocation of a decree is sought in accordance with can. 1734 and the time-limit for recourse has not elapsed. If recourse is proposed against a decree, the
Superior who would have to decide the recourse is to encourage both the person having recourse and the author of the decree to seek this type of solution, whenever the prospect of a satisfactory outcome is discerned.
|Canon 1734.||§1 Before having recourse, the person must seek in writing from its author the revocation or amendment of the decree. Once this petition has been lodged, it is by that very fact understood that the suspension of the execution of the decree is also being sought.
§2 The petition must be made within the peremptory time-limit of ten canonical days from the time the decree was lawfully notified.
§3 The norms in §§1 and 2 do not apply:
1° in having recourse to the Bishop against decrees given by authorities who are subject to him;
2° in having recourse against the decree by which a hierarchical recourse is decided, unless the decision was given by the Bishop himself ;
3° in having recourse in accordance with cann. 57 and 1735.
|Canon 1735.||If, within thirty days from the time the petition mentioned in can. 1734 reaches the author of the decree, the latter communicates a new decree by which either the earlier decree is amended or it is determined that the petition is to be rejected, the period within which to have recourse begins from the notification of the new decree. If, however, the author of the decree makes no decision within thirty days, the time-limit begins to run from the thirtieth day.|
|Canon 1736.||§1 In those matters in which hierarchical recourse suspends the execution of a decree, even the petition mentioned in can. 1734 has the same effect.
§2 In other cases, unless within ten days of receiving the petition mentioned in Can.
1734 the author of the decree has decreed its suspension, an interim suspension can be sought from the author’s hierarchical Superior. This Superior can decree the suspension only for serious reasons and must always take care that the salvation of souls suffers no harm.
§3 If the execution of the decree is suspended in accordance with §2 and recourse is subsequently proposed, the person who must decide the recourse is to determine, in accordance with can. 1737 §3, whether the suspension is to be confirmed or revoked.
§4 If no recourse is proposed against the decree within the time-limit established, an interim suspension of execution in accordance with §§1 and 2 automatically lapses.
|Canon 1737.||§1 A person who contends that he or she has been injured by a decree, can for any just motive have recourse to the hierarchical Superior of the one who issued the decree. The recourse can be proposed before the author of the decree, who must immediately forward it to the competent hierarchical Superior.
§2 The recourse is to be proposed within the peremptory time-limit of fifteen canonical days. In the cases mentioned in can. 1734 §3, the timelimit begins to run from the day the decree was notified; in other cases, it runs in accordance with Can.
§3 Even in those cases in which recourse does not by law suspend the execution of the decree, or in which the suspension is decreed in accordance with can. 1736 §2, the Superior can for a serious reason order that the execution be suspended, but is to take care that the salvation of souls suffers no harm.
[NB see Authentic Interpretation of canon 1737, 20.VI.1987]
|Canon 1738.||The person having recourse always has the right to the services of an advocate or procurator, but is to avoid futile delays. Indeed, an advocate is to be appointed ex officio if the person does not have one and the Superior considers it necessary. The Superior, however, can always order that the one having recourse appear in person to answer questions.|
|Canon 1739.||In so far as the case demands, it is lawful for the Superior who must decide the recourse, not only to confirm the decree or declare that it is invalid, but also to rescind or revoke it or, if it seems to the Superior to be more expedient, to amend it, to substitute for it, or to obrogate it.|
|Processes » The Method of Proceeding in Administrative Recourse and in the Removal or Transfer of Pastors » The Procedure in the Removal or Transfer of Pastors » The manner of proceeding in the removal of pastors|
|Canon 1740.||When the ministry of any parish priest has for some reason become harmful or at least ineffective, even though this occurs without any serious fault on his part, he can be removed from the parish by the diocesan Bishop.|
|Canon 1741.||The reasons for which a parish priest can lawfully be removed from his parish are principally:
1° a manner of acting which causes grave harm or disturbance to ecclesiastical communion;
2° ineptitude or permanent illness of mind or body, which makes the parish priest unequal to the task of fulfilling his duties satisfactorily;
3° the loss of the parish priest’s good name among upright and serious-minded parishioners, or aversion to him, when it can be foreseen that these factors will not quickly come to an end
4° grave neglect or violation of parochial duties, which persistsafter a warning;
5° bad administration of temporal goods with grave harm to the Church, when no other remedy can be found to eliminate this harm.
|Canon 1742.||§1 If an investigation shows that there exists a reason mentioned in Can.
1740, the Bishop is to discuss the matter with two parish priests from a group stably chosen for this purpose by the council of priests, at the proposal of the Bishop. If he then believes that he should proceed with the removal, the Bishop must, for validity, indicate to the parish priest the reason and the arguments, and persuade him in a fatherly manner to resign his parish within fifteen days.
§2 For parish priests who are members of a religious institute or a society of apostolic life, the provision of can. 682 §2 is to be observed.
|Canon 1743.||The resignation of the parish priest can be given not only purely and simply, but even upon a condition, provided the condition is one which the Bishop can lawfully accept and does in fact accept.|
|Canon 1744.||§1 If the parish priest has not replied within the days prescribed, the
Bishop is to renew his invitation and extend the canonical time within which a reply is to be made.
§2 If it is clear to the Bishop that the parish priest has received this second invitation but has not replied, even though not prevented from doing so by any impediment, or
if the parish priest refuses to resign and gives no reasons for this, the Bishop is to issue a decree of removal.
|Canon 1745.||If, however, the parish priest opposes the case put forward and the reasons given in it, but advances arguments which seem to the Bishop to be insufficient, to act validly the Bishop must:
1° invite him to inspect the acts of the case and put together his objections in a written answer, indeed to produce contrary evidence if he has any;
2° after this, complete the instruction of the case, if this is necessary, and weigh the matter with the same parish priests mentioned in can. 1742 §1, unless, because of some impossibility on their part, others are to be designated;
3° finally, decide whether or not the parish priest is to be removed, and without delay issue the appropriate decree.
|Canon 1746.||When the parish priest has been removed, the Bishop is to ensure that he is either assigned to another office, if he is suitable for one, or is given a pension in so far as the case requires this and the circumstances permit.|
|Canon 1747.||§1 A parish priest who has been removed must abstain from exercising the function of a parish priest, leave the parochial house free as soon as possible, and hand over everything pertaining to the parish to the person to whom the Bishop has entrusted it.
§2 If, however, it is a question of a sick man who cannot be transferred elsewhere from the parochial house without inconvenience, the Bishop is to leave to him the use, even the exclusive use, of the parochial house for as long as this necessity lasts.
§3 While recourse against a decree of removal is pending, the Bishop cannot appoint a new parish priest, but is to make provision in the meantime by way of a parochial administrator.
|Processes » The Method of Proceeding in Administrative Recourse and in the Removal or Transfer of Pastors » The Procedure in the Removal or Transfer of Pastors » The manner of proceeding in the transfer of pastors|
|Canon 1748.||The good of souls or the necessity or advantage of the
Church may demand that a parish priest be transferred from his own parish, which he governs satisfactorily, to another parish or another office. In these circumstances, the
Bishop is to propose the transfer to him in writing and persuade him to consent, for the love of God and of souls.
|Canon 1749.||If the parish priest proposes not to acquiesce in the Bishop’s advice and persuasion, he is to give his reasons in writing.|
|Canon 1750.||Despite the reasons put forward, the Bishop may judge that he should not withdraw from his proposal. In this case, together with two parish priests chosen in accordance with can. 1742 §1, he is to weigh the reasons which favour and those which oppose the transfer. If the Bishop still considers that the transfer should proceed, he is again to renew his fatherly exhortation to the parish priest.|
|Canon 1751.||§1 If, when these things have been done, the parish priest still refuses and the Bishop still believes that a transfer ought to take place, the Bishop is to issue a decree of transfer stating that, when a prescribed time has elapsed, the parish shall be vacant.
§2 When this time has elapsed without result, he is to declare the parish vacant.
|Canon 1752.||In cases of transfer, the provisions of can. 1747 are to be applied, always observing canonical equity and keeping in mind the salvation of souls, which in the
Church must always be the supreme law.
Page generated in 0.0223 seconds.
Website code © 2020 (MIT License). Version 2.7.2 FAQ