The Pursuit or Vindication of Rights

The judicial process of ecclesiastical tribunals is not limited to the determination of the validity of marriage. The object of judgment can also be the pursuit or vindication of the rights of physical persons or of juridical persons [a juridical person is an aggregate of persons or things recognized in canon law as being the subject of rights and obligations, e.g. a parish].

The rights of an individual physical person in canon law are spread throughout the Code of Canon Law. Many of these rights are fundamental human rights [the right to a good reputation, the right to due process, etc.] and others derive from a person’s status in the Church [e.g., the rights of a parish priest; the rights of someone accused of a crime; etc.]. If such rights are violated, a person has the right to vindicate them.

The rights of juridical persons in canon law generally refer to temporal goods, but not only: e.g. a parish has the right to exist until and unless it is lawfully suppressed.

The judicial process to be followed is normally known as the "ordinary contentious process." Special norms do exist, however, for certain types of cases [e.g. marriage nullity cases; penal or criminal cases; cases investigating the validity of holy orders; etc.].

The Penal Process

Sin in the Church’s life is normally dealt with by the sacraments, as well as by prayer, fasting, almsgiving and the cultivation of virtue. The reality is, however, that certain external manifestations of grave sin constitute "crimes" or "delicts" because they cause scandal in a community and can seriously disrupt justice in its life. The Church must deal with such situations for the public good of the community, also defined as the "salvation of souls." As in civil society, the Church has a penal code. In the face of any delict foreseen by that code, a penal process is undertaken with the purpose of repairing the scandal, restoring justice and reforming the guilty party.

Before a process as such may be set in motion, the law requires that a preliminary investigation be undertaken. The head of the community, usually the Bishop, must decree the opening of the investigation before it can proceed. He must then first evaluate if an alleged delict is likely to be true, or is merely a rumour or misunderstanding. If there is a semblance of truth, the Bishop or his delegate must, unless it is considered totally unnecessary, carefully inquire into the matter in order to establish the facts and circumstances of the delict and whether or not the accused is actually its author. Great care is to be taken that no-one’s good name is called into question. Thereafter, the Bishop, having consulted two judges or other experts, must decide by decree if the matter can be adequately resolved by pastoral means or not. If not, he must decree whether the process to be followed is judicial [that is, decided by judges] or administrative [that is, decided by the Bishop himself with the assistance of two "assessors", or experts in the matter involved].

If the Bishop considers that the accusation is devoid of merit, he need not decree the initiation of a preliminary investigation, although his decision can be challenged. If, after completing the preliminary investigation, he decrees that there is no case to be heard, he is to put all of the documentation related to the investigation into the secret archive of his diocese.

There are some delicts which are reserved to the Holy See [such as desecration of the Eucharist or the sexual abuse of a minor by a cleric]. In such cases, the Bishop performs the preliminary investigation, but the decision as to whether or not to proceed to a penal process belongs to the Holy See. The Holy See may then conduct the process itself or send it back to the Bishop to be processed locally.