Book VII: Processes
The Code of Canon Law (new)
Book 7
PART I : TRIALS IN GENERAL
Can. 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.
Can. 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.
Can. 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.
Can. 1403 §1 Cases for the canonization 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.
TITLE I: THE COMPETENT FORUM
Can. 1404 The First See is judged by no one.
Can. 1405 §1 In the cases mentioned in can. 1401, the Roman Pontiff alone has the right to judge:
1° Heads of State;
2° Cardinals;
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 Roman Pontiff 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.
Can. 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.
Can. 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 canon. 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.
Can. 1408 Anyone can be brought to trial before the tribunal of domicile or quasi domicile.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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 canon. 1408 1409. If, however, only the execution of the legacy is involved, the ordinary norms of competence are to be followed.
Can. 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.
Can. 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.
Can. 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.
TITLE II : DIFFERENT GRADES AND KINDS OF TRIBUNALS
Can. 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 judgment, unless the Apostolic See has indicated to him that it has reserved the case to itself.
Can. 1418 Every tribunal has the right to call on other tribunals for assistance in instructing a case or in communicating acts.
CHAPTER I : THE TRIBUNAL OF FIRST INSTANCE
ARTICLE 1 : THE JUDGE
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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 canon. 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.
Can. 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.
Can. 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 canon. 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 judgment 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.
Can. 1426 §1 A collegiate tribunal must proceed in a collegiate fashion and give its judgment by majority vote.
§2 As far as possible, the judicial Vicar or an associate judicial Vicar must preside over the collegiate tribunal.
Can. 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 nonreligious juridical person, it is the diocesan tribunal which judges at first instance.
ARTICLE 2: AUDITORS AND RELATORS
Can. 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.
Can. 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 judgment in writing. For a just reason the presiding judge can substitute another person in the place of the 'ponens'.
ARTICLE 3: THE PROMOTER OF JUSTICE, THE DEFENDER OF THE BOND AND THE NOTARY
Can. 1430 A promoter 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 promoter is bound by office to safeguard the public good.
Can. 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 promoter of justice, or this is clearly necessary from the nature of things.
§2 If the promoter of justice has intervened at an earlier instance of a trial, this intervention is presumed to be necessary at a subsequent instance.
Can. 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.
Can. 1433 In cases in which the presence of the promoter 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 fulfill their role at least before the judgment.
Can. 1434 Unless otherwise expressly provided:
1° whenever the law directs that the judge is to hear the parties or either of them, the promoter 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 promoter of justice or of the defender of the bond engaged in the trial has equal weight.
Can. 1435 It is the Bishop's responsibility to appoint the promoter 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.
Can. 1436 §1 The same person can hold the office of promoter of justice and defender of the bond, although not in the same case.
§2 The promoter 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.
Can. 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.
CHAPTER II : THE TRIBUNAL OF SECOND INSTANCE
Can. 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.
Can. 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.
Can. 1440 If competence by reason of the grade of trial, in accordance with the provisions of canon. 1438 and 1439, is not observed, then the non competence of the judge is absolute.
Can. 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 judgment in first instance in accordance with can. 1425 §4, the second instance tribunal is to act collegially.
CHAPTER III : THE TRIBUNALS OF THE APOSTOLIC SEE
Can. 1442 The Roman Pontiff is the supreme judge for the whole catholic world. He gives judgment either personally, or through the ordinary tribunals of the Apostolic See, or through judges whom he delegates.
Can. 1443 The ordinary tribunal constituted by the Roman Pontiff to receive appeals is the Roman Rota.
Can. 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.
Can. 1445 §1 The supreme Tribunal of the Apostolic Signatura hears:
1° plaints of nullity, petitions for total reinstatement and other recourses against rotal judgments;
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 canon. 1423 and 1439.
TITLE III : THE DISCIPLINE TO BE OBSERVED IN TRIBUNALS
CHAPTER I : THE DUTIES OF THE JUDGES AND OF THE OFFICERS OF THE TRIBUNAL
Can. 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 rancor.
§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 judgment by an arbitrator, in accordance with the norms of canon. 1717 1720 [6] , might usefully serve to resolve the controversy.
Can. 1447 Any person involved in a case as judge, promoter 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.
Can. 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 promoter of justice, the defender of the bond, the assessor and the auditor must likewise refrain from exercising their offices in these circumstances.
Can. 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 promoter 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.
Can. 1450 If the objection is upheld, the persons in question are to be changed, but not the grade of trial.
Can. 1451 §1 The objection is to be decided with maximum expedition, after hearing the parties, the promoter 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.
Can. 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 judgment, without prejudice to the provisions of can. 1600.
Can. 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.
Can. 1454 All who constitute a tribunal or assist in it must take an oath to exercise their office properly and faithfully.
Can. 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 judgment, 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.
Can. 1456 The judge and all who work in the tribunal are forbidden to accept any gifts on the occasion of a trial.
Can. 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 judgment; 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.
CHAPTER II : THE ORDERING OF THE HEARING
Can. 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.
Can. 1459 §1 Defects which can render the judgment 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.
Can. 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.
Can. 1461 A judge who becomes aware at any stage of the case that he is absolutely non competent, is bound to declare his noncompetence.
Can. 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.
Can. 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.
Can. 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
CHAPTER III : TIME LIMITS AND POSTPONEMENTS
Can. 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.
Can. 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.
Can. 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.
CHAPTER IV : THE PLACE OF TRIAL
Can. 1468 As far as possible, the place where each tribunal sits is to be an established office which is open at stated times.
Can. 1469 §1 A judge who is forcibly expelled from his territory or prevented from exercising jurisdiction there, can exercise his jurisdiction and deliver judgment 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.
CHAPTER V : THOSE WHO MAY BE ADMITTED TO THE COURT AND THE MANNER OF COMPILING AND PRESERVING THE ACTS
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
TITLE IV: THE PARTIES IN THE CASE
CHAPTER I : THE PLAINTIFF AND THE RESPONDENT
Can. 1476 Any person, baptized or unbaptized, can plead before a court. A person lawfully brought to trial must respond.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
CHAPTER II : PROCURATORS AND ADVOCATES
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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 judgment has been given, the right and duty to appeal lie with the procurator, unless the mandating party refuses.
Can. 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.
Can. 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 favorably by other tribunals.
Can. 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.
Can. 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.
TITLE V: ACTIONS AND EXCEPTIONS
CHAPTER I : ACTIONS AND EXCEPTIONS IN GENERAL
Can. 1491 Every right is reinforced not only by an action, unless otherwise expressly provided, but also by an exception.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
CHAPTER II : ACTIONS AND EXCEPTIONS IN PARTICULAR
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
FOOTNOTES 6 Translators' note: It would appear that this reference should read 'canon. 1713-1716'.
PART II : THE CONTENTIOUS TRIAL
SECTION I: THE ORDINARY CONTENTIOUS TRIAL
TITLE I: THE INTRODUCTION OF THE CASE
CHAPTER I : THE PETITION INTRODUCING THE SUIT
Can. 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 promoter of justice.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
CHAPTER II : THE SUMMONS AND THE INTIMATION OF JUDICIAL ACTS
Can. 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.
Can. 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.
Can. 1509 §1 With due regard to the norms laid down by particular law, the notification of summonses, decrees, judgments 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.
Can. 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.
Can. 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.
Can. 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'.
TITLE II: THE JOINDER OF THE ISSUE
Can. 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 judgment 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.
Can. 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.
Can. 1515 Once the joinder of the issue has occurred, the possessor of another's property ceases to be in good faith. If, therefore, the judgment 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.
Can. 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.
TITLE III: THE TRIAL OF THE ISSUE
Can. 1517 The trial of the issue is initiated by the summons. It is concluded not only by the pronouncement of the definitive judgment, but also by other means determined by law.
Can. 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 the remaining steps of the case, having first summoned the procurator, if there is one, or else the heir or the successor of the deceased.
Can. 1519 §1 If the guardian or the curator or the procurator required in accordance with can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 1523 When a trial has been abated, the litigants are to bear the expenses which each has incurred.
Can. 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.
Can. 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.
TITLE IV: PROOFS
Can. 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.
Can. 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.
Can. 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.
Can. 1529 Unless there is a grave reason, the judge is not to proceed to collect the proofs before the joinder of the issue.
CHAPTER I : THE DECLARATIONS OF THE PARTIES
Can. 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.
Can. 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.
Can. 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.
Can. 1533 The parties, the promoter of justice and the defender of the bond may submit to the judge propositions upon which a party is to be questioned.
Can. 1534 The provisions of canon. 15482, n. 1, 1552 and 1558 1565 concerning witnesses are to be observed, with the appropriate qualifications, in the questioning of the parties.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
CHAPTER II : DOCUMENTARY PROOF
Can. 1539 In every type of trial documentary proof is admitted, whether the documents be public or private.
ARTICLE 1: THE NATURE AND RELIABILITY OF DOCUMENTS
Can. 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.
Can. 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.
Can. 1542 A private document, whether acknowledged by a party or admitted by a judge, has the same probative force as an extrajudicial 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.
Can. 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.
ARTICLE 2: THE PRODUCTION OF DOCUMENTS
Can. 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.
Can. 1545 The judge can direct that a document common to each of the parties is to be submitted in the process.
Can. 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.
CHAPTER III : WITNESSES AND TESTIMONY
Can. 1547 Proof by means of witnesses is admitted in all cases, under the direction of the judge.
Can. 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.
ARTICLE 1: THOSE WHO CAN BE WITNESSES
Can. 1549 Everyone can be a witness, unless expressly excluded, whether wholly or in part, by the law.
Can. 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.
ARTICLE 2: THE INTRODUCTION AND THE EXCLUSION OF WITNESSES
Can. 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.
Can. 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.
Can. 1553 It is for the judge to curb an excessive number of witnesses.
Can. 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.
Can. 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.
Can. 1556 The summons of a witness is effected by a decree of the judge lawfully notified to the witness.
Can. 1557 A properly summoned witness is to appear, or to make known to the judge the reason for being absent.
ARTICLE 3: THE EXAMINATION OF WITNESSES
Can. 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 favor, are to be heard at the place selected by themselves.
§3 Without prejudice to the provisions of can. 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.
Can. 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.
Can. 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.
Can. 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 promoter 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
ARTICLE 4: THE CREDIBILITY OF EVIDENCE
Can. 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 if it was something seen or heard personally, or whether it was opinion, rumor 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.
Can. 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.
CHAPTER IV : EXPERTS
Can. 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.
Can. 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.
Can. 1576 Experts can be excluded or objected to for the same reasons as witnesses.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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 fulfill their role. They can always submit their reports.
CHAPTER V : JUDICIAL ACCESS AND INSPECTION
Can. 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.
Can. 1583 After the inspection has been carried out, a document concerning it is to be drawn up.
CHAPTER VI : PRESUMPTIONS
Can. 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.
Can. 1585 A person with a presumption of law in his or her favor is freed from the onus of proof, which then falls on the other party.
Can. 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.
TITLE V: INCIDENTAL MATTERS
Can. 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.
Can. 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.
Can. 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 judgment or by a decree.
§2 If, however, he concludes that the incidental matter is not to be decided before the definitive judgment, he is to determine that account be taken of it when the principal matter is decided.
Can. 1590 §1 If the incidental matter is to be decided by judgment, 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.
Can. 1591 Before the principal matter is concluded, the judge or the tribunal may for a just reason revoke or alter an interlocutory judgment 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.
CHAPTER I : THE NON APPEARANCE OF PARTIES
Can. 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 judgment 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.
Can. 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 judgment; 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.
Can. 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 canon. 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.
Can. 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.
CHAPTER II : THE INTERVENTION OF A THIRD PARTY IN A CASE
Can. 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.
Can. 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.
TITLE VI: THE PUBLICATION OF THE ACTS, THE CONCLUSION OF THE CASE AND THE PLEADINGS
Can. 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 defense 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.
Can. 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.
Can. 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 judgment 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.
Can. 1601 When the case has been concluded, the judge is to determine a suitable period of time for the presentation of pleadings and observations.
Can. 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.
Can. 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 promoter of justice and the defender of the bond have the right to respond to every reply of the parties.
Can. 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.
Can. 1605 The notary is to be present at the oral discussion mentioned in canon. 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.
Can. 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 judgment at once. He must, however, seek the observations of the promoter of justice and the defender of the bond if they were engaged in the trial.
TITLE VII : THE PRONOUNCEMENTS OF THE JUDGE
Can. 1607 A principal case which has been dealt with in judicial fashion is decided by the judge by a definitive judgment. An incidental matter is decided by an interlocutory judgment, without prejudice to can. 1589
Can. 1608 §1 To give any judgment, the judge must have in his mind moral certainty about the matter to be decided in the judgment.
§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 favor of law, when he is to pronounce in its favor.
Can. 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 judgment.
§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.
Can. 1610 §1 If there is a sole judge, he will draw up the judgment.
§2 In a collegiate tribunal, the 'ponens' or 'relator' is to draw up the judgment, 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 judgment must then be submitted to the individual judges for their approval.
§3 The judgment 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.
Can. 1611 The judgment 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 judgment is based;
4° apportion the expenses of the suit.
Can. 1612 §1 The judgment, 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 promoter 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 judgment, 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.
Can. 1613 The rules set out above for a definitive judgment are to be adapted also to interlocutory judgments.
Can. 1614 A judgment 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.
Can. 1615 The publication or notification of the judgment can be effected by giving a copy of the judgment to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509.
Can. 1616 §1 A judgment must be corrected or completed by the tribunal which gave it if, in the text of a judgment, 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 judgment.
§2 If one party is opposed, an incidental question is to be decided by a decree.
Can. 1617 Other pronouncements of a judge apart from the judgment, 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.
Can. 1618 An interlocutory judgment or a decree has the force of a definitive judgment 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.
TITLE VIII: CHALLENGING THE JUDGMENT
CHAPTER I : THE PLAINT OF NULLITY OF THE JUDGMENT
Can. 1619 Without prejudice to canon. 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 judgment itself, if the nullity was known to the party making the plaint and was not raised with the judge before the judgment.
Can. 1620 A judgment 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 judgment;
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 defense was denied to one or other party;
8° the controversy has not been even partially decided.
Can. 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 judgment by means of an action before the judge who delivered the judgment.
Can. 1622 A judgment 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.
Can. 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 judgment.
Can. 1624 The judge who gave the judgment is to consider the plaint of its nullity. If the party fears that the judge who gave the judgment is biased, and consequently considers him suspect, he or she can demand that another judge take his place in accordance with can. 1450.
Can. 1625 Within the time limit established for appeal, a plaint of nullity can be proposed together with the appeal.
Can. 1626 §1 A plaint of nullity can be made not only by parties who regard themselves as injured, but also by the promoter 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 judgment 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.
Can. 1627 Cases concerning a plaint of nullity can be dealt with in accordance with the norms for an oral contentious process.
CHAPTER II : THE APPEAL
Can. 1628 Without prejudice to the provisions of can. 1629, a party who considers him or herself to be injured by a judgment has a right to appeal from the judgment to a higher judge; in cases in which their presence is required, the promoter of justice and the defender of the bond have likewise the right to appeal.
Can. 1629 No appeal is possible against:
1° a judgment of the Supreme Pontiff himself, or a judgment of the Apostolic Signatura;
2° a judgment which is null, unless the appeal is lodged together with a plaint of nullity, in accordance with can. 1625;
3° a judgment which has become an adjudged matter
4° a decree of the judge or an interlocutory judgment, which does not have the force of a definitive judgment, unless the appeal is lodged together with an appeal against the definitive judgment;
5° a judgment or a decree in a case in which the law requires that the matter be settled with maximum expedition.
Can. 1630 §1 The appeal must be lodged with the judge who delivered the judgment, within a peremptory time limit of fifteen canonical days from notification of the publication of the judgment.
§2 If it is made orally, the notary is to draw up the appeal in writing in the presence of the appellant.
Can. 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.
Can. 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 canon. 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.
Can. 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.
Can. 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 judgment which is challenged, enclosing a copy of the judgment and indicating the reasons for the appeal.
§2 If the party is unable to obtain a copy of the appealed judgment from the originating tribunal within the canonical time limit, this time limit 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 fulfill 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.
Can. 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.
Can. 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 promoter of justice, can be renounced by the defender of the bond or the promoter of justice of the appeal tribunal.
Can. 1637 §1 An appeal made by the plaintiff benefits the respondent, and vice versa.
§2 If there are several respondents or plaintiffs, and the judgment 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 judgment 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 judgment.
Can. 1638 An appeal suspends the execution of the judgment.
Can. 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 judgment, either in part or in whole.
§2 New evidence is admitted only in accordance with can. 1600.
Can. 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 judgment.
TITLE IX: ADJUDGED MATTER AND TOTAL REINSTATEMENT
CHAPTER I : ADJUDGED MATTER
Can. 1641 Without prejudice to can. 1643, an adjudged matter occurs when:
1° there are two conforming judgments between the same parties about the same matter and on the same grounds;
2° no appeal was made against the judgment within the canonical time limit;
3° the trial has been abated or renounced in the appeal grade;
4° a definitive judgment has been given from which, in accordance with can. 1629, there is no appeal.
Can. 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 judgment 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.
Can. 1643 Cases concerning the status of persons never become an adjudged matter, not excepting cases which concern the separation of spouses.
Can. 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 judgment, unless the law provides otherwise or the appeal tribunal orders a suspension in accordance with can. 1650 §3.
CHAPTER II : TOTAL REINSTATEMENT
Can. 1645 §1 Against a judgment which has become an adjudged matter there can be a total reinstatement, provided it is clearly established that the judgment was unjust.
§2 Injustice is not, however, considered clearly established unless:
1° the judgment is so based on evidence which is subsequently shown to be false, that without this evidence the dispositive part of the judgment could not be sustained;
2° documents are subsequently discovered by which new facts demanding a contrary decision are undoubtedly proven;
3° the judgment 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 judgment runs counter to a preceding decision which has become an adjudged matter.
Can. 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 judgment 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 judgment. 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.
Can. 1647 §1 A plea for total reinstatement suspends the execution of a judgments 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 judgment 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.
Can. 1648 Where total reinstatement is granted, the judge must pronounce judgment of the merits of the case.
TITLE X : JUDICIAL EXPENSES AND FREE LEGAL AID
Can. 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.
TITLE XI: THE EXECUTION OF THE JUDGMENT
Can. 1650 §1 A judgment which becomes adjudged matter can be executed, without prejudice to the provision of can. 1647.
§2 The judge who delivered the judgment 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 judgment 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 judgment 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.
Can. 1651 Execution cannot take place before there is issued the judge's executing decree directing that the judgment be executed. Depending on the nature of the case, this decree is to be either included in the judgment itself or issued separately.
Can. 1652 If the execution of the judgment requires a prior statement of reasons, this is to be treated as an incidental question, to be decided by the judge who gave the judgment which is to be executed.
Can. 1653 §1 Unless particular law provides otherwise, the Bishop of the diocese in which the first instance judgment was given must, either personally or through another, execute the judgment.
§2 If he refuses or neglects to do so, the execution of the judgment, 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 judgment is the responsibility of the Superior who gave the judgment which is to be executed, or who delegated the judge.
Can. 1654 §1 The executor must execute the judgment according to the obvious sense of the words, unless in the judgment 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 judgment is null or manifestly unjust according to canon. 1620, 1622 and 1645, he is to refrain from executing the judgment, and is instead to refer the matter to the tribunal which delivered the judgment and to notify the parties.
Can. 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 judgment itself, or the executor according to his discretion and prudence, is to assign a time limit for the fulfillment of the obligation. This time limit is to be not less than fifteen days nor more than six months.
SECTION II: THE ORAL CONTENTIOUS PROCESS
Can. 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.
Can. 1657 An oral contentious process in first instance is made before a sole judge, in accordance with can. 1424.
Can. 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.
Can. 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.
Can. 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.
Can. 1661 §1 When the time limits mentioned in canon. 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.
Can. 1662 In the hearing, the questions mentioned in canon. 1459 1464 are considered first.
Can. 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.
Can. 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.
Can. 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. 1600.
Can. 1666 If all the evidence cannot be collected during the hearing, a further hearing is to be set.
Can. 1667 When the evidence has been collected, an oral discussion is to take place at the same hearing.
Can. 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 judgment being correctly delivered. The dispositive part of the judgment 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 judgment, including the reasons for it, is to be notified to the parties as soon as possible, normally within fifteen days.
Can. 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 judgment invalid and refer the case back to the tribunal which delivered the judgment.
Can. 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.
PART III : CERTAIN SPECIAL PROCESSES
TITLE I: MATRIMONIAL PROCESSES
CHAPTER I : CASES CONCERNING THE DECLARATION OF NULLITY OF MARRIAGE
ARTICLE 1: THE COMPETENT FORUM
Can. 1671 Matrimonial cases of the baptized belong by their own right to the ecclesiastical judge.
Can. 1672 Cases concerning the merely civil effects of marriage pertain to the civil courts, unless particular law lays down that, if such cases are raised as incidental and accessory matters, they may be heard and decided by an ecclesiastical judge.
Can. 1673 The following tribunals are competent in cases concerning the nullity of marriage which are not reserved to the Apostolic See:
1° the tribunal of the place where the marriage was celebrated;
2° the tribunal of the place where the respondent has a domicile or quasi domicile;
3° the tribunal of the place where the plaintiff has a domicile, provided that both parties live within the territory of the same Episcopal Conference, and that the judicial Vicar of the domicile of the respondent, after consultation with the respondent, gives consent;
4° the tribunal of the place in which in fact most of the evidence is to be collected, provided that consent is given by the judicial Vicar of the domicile of the respondent, who must first ask the respondent whether he or she has any objection to raise.
ARTICLE 2: THE RIGHT TO CHALLENGE THE VALIDITY OF MARRIAGE
Can. 1674 The following are able to challenge the validity of a marriage:
1° the spouses themselves;
2° the promoter of justice, when the nullity of the marriage has already been made public, and the marriage cannot be validated or it is not expedient to do so.
Can. 1675 §1 A marriage which was not challenged while both parties were alive, cannot be challenged after the death of either or both, unless the question of validity is a necessary preliminary to the resolution of another controversy in either the canonical or the civil forum.
§2 If a spouse should die during the course of a case, can. 1518 is to be observed.
ARTICLE 3: THE DUTIES OF THE JUDGES
Can. 1676 Before he accepts a case and whenever there appears to be hope of success, the judge is to use pastoral means to persuade the spouses that, if it is possible, they should perhaps validate their marriage and resume their conjugal life.
Can. 1677 §1 When the petition has been accepted, the presiding judge or the 'ponens' is to proceed to the notification of the decree of summons, in accordance with can. 1508.
§2 If, within fifteen days of the notification, neither party has requested a session to contest the suit, then within the following ten days the presiding judge or 'ponens' is, by a decree, to decide ex officio the formulation of the doubt or doubts and to notify the parties accordingly.
§3 The formulation of the doubt is not only to ask whether the nullity of the particular marriage is proven, but also to determine the ground or grounds upon which the validity of the marriage is being challenged.
§4 If the parties have not objected to this decree within ten days of being notified, the presiding judge or 'ponens' is, by a new decree, to arrange for the hearing of the case.
ARTICLE 4: PROOFS
Can. 1678 §1 The defender of the bond, the advocates of the parties and, if engaged in the process, the promoter of justice, have the right:
1° to be present at the examination of the parties, the witnesses and the experts, without prejudice to can. 1559;
2° to see the judicial acts, even if they are not yet published, and to inspect documents produced by the parties.
§2 The parties themselves cannot be present at the sessions mentioned in §1, n. 1.
Can. 1679 Unless the evidence brought forward is otherwise complete, in order to weigh the depositions of the parties in accordance with can. 1536, the judge is, if possible, to hear witnesses to the credibility of the parties, as well as to gather other indications and supportive elements.
Can. 1680 In cases concerning impotence or defect of consent by reason of mental illness, the judge is to use the services of one or more experts, unless from the circumstances this would obviously serve no purpose. In other cases, the provision of can. 1574 is to be observed.
ARTICLE 5: THE JUDGMENT AND THE APPEAL
Can. 1681 Whenever in the course of the hearing of a case a doubt of a high degree of probability arises that the marriage has not been consummated, the tribunal can, with the consent of the parties, suspend the nullity case and complete the instruction of a case for a dispensation from a non consummated marriage; eventually it can forward the acts to the Apostolic See, together with a petition, from either or both of the parties for a dispensation, and with the Opinions of the tribunal and of the Bishop.
Can. 1682 §1 The judgment which has first declared the nullity of a marriage, together with the appeals, if there are any, and the judicial acts, are to be sent ex officio to the appeal tribunal within twenty days of the publication of the judgment.
§2 If the judgment given in first instance was in favor of the nullity of the marriage, the appeal tribunal, after weighing the observations of the defender of the bond and, if there are any, of the parties, is by its decree either to ratify the decision at once, or to admit the case to ordinary examination in the new instance.
Can. 1683 If a new ground of nullity of marriage is advanced in the appeal grade, the tribunal can admit it and give judgment on it as at first instance.
Can. 1684 §1 After the judgment which first declared the nullity of the marriage has been confirmed on appeal either by decree or by another judgment, those whose marriage has been declared invalid may contract a new marriage as soon as the decree or the second judgment has been notified to them, unless there is a prohibition appended to the judgment or decree itself, or imposed by the local Ordinary.
§2 The provisions of can. 1644 are to be observed even if the judgment which declared the nullity of the marriage is confirmed not by a second judgment, but by a decree.
Can. 1685 As soon as the sentence is executed, the judicial Vicar must notify the Ordinary of the place where the marriage was celebrated. This Ordinary must ensure that a record of the decree of nullity of the marriage, and of any prohibition imposed, is as soon as possible entered in the registers of marriage and baptism.
ARTICLE 6: THE DOCUMENTARY PROCESS
Can. 1686 A marriage can be declared invalid on the basis of a document which proves with certainty the existence of a diriment impediment a defect of lawful form or the lack of a valid proxy mandate; the document must not be open to any contradiction or exception. It must be equally certain that no dispensation has been given. When a petition in accordance with can. 1677 has been received alleging such invalidity, the judicial Vicar, or a judge designated by him, can omit the formalities of the ordinary procedure and, having summoned the parties, and with the intervention of the defender of the bond, declare the nullity of the marriage by a judgment.
Can. 1687 §1 If the defender of the bond prudently judges that the defects mentioned in can. 1686, or the lack of dispensation, are not certain, he must appeal to the judge of second instance. The acts must be sent to the appeal judge and he is to be informed in writing that it is a documentary process.
§2 A party who considers him or herself injured retains the right of appeal.
Can. 1688 The judge of second instance, with the intervention of the defender of the bond and after consulting the parties, is to decide in the same way as in can. 1686 whether the judgment is to be ratified, or whether the case should rather proceed according to the ordinary course of law, in which event he is to send the case back to the tribunal of first instance.
ARTICLE 7: GENERAL NORMS
Can. 1689 In the judgment the parties are to be reminded of the moral, and also the civil, obligations by which they may be bound, both towards one another and in regard to the support and upbringing of their children.
Can. 1690 Cases for the declaration of nullity of marriage cannot be dealt with by the oral contentious process.
Can. 1691 In other matters concerning the conduct of the process, the canons concerning judicial powers in general and concerning the ordinary contentious process are to be applied, unless the nature of the case demands otherwise; the special norms concerning cases dealing with the status of persons and cases pertaining to the public good are also to be observed.
CHAPTER II : CASES CONCERNING THE SEPARATION OF SPOUSES
Can. 1692 §1 Unless lawfully provided otherwise in particular places, the personal separation of baptized spouses can be decided by a decree of the diocesan Bishop, or by the judgment 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 judgment 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 endeavor, without prejudice to the provision of §2, to have the case brought before the civil court from the very beginning.
Can. 1693 §1 The oral contentious process is to be used, unless either party or the promoter 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.
Can. 1694 In matters concerning the competence of the tribunal, the provisions of can. 1673 are to be observed.
Can. 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.
Can. 1696 Cases of separation of spouses also concern the public good; the promoter of justice must, therefore, always intervene, in accordance with can. 1433.
CHAPTER III : THE PROCESS FOR THE DISPENSATION FROM A RATIFIED AND NON CONSUMMATED MARRIAGE
Can. 1697 The parties alone, or indeed one of them even if the other is unwilling, have the right to seek the favor of a dispensation from a ratified and non consummated marriage.
Can. 1698 §1 Only the Apostolic See gives judgment 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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 favor.
§2 If the instruction of the process has been entrusted to another tribunal in accordance with Can. 1700, the observations in favor 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.
Can. 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 judgment 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.
Can. 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.
CHAPTER IV : THE PROCESS IN THE CASE OF THE PRESUMED DEATH OF A SPOUSE
Can. 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.
TITLE II: CASES FOR THE DECLARATION OF NULLITY OF SACRED ORDINATION
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 1712 After a second judgment confirming the nullity of the sacred ordination, the cleric loses all rights proper to the clerical state and is freed from all its obligations.
TITLE III: WAYS OF AVOIDING TRIALS
Can. 1713 In order to avoid judicial disputes, agreement or reconciliation can profitably be adopted, or the controversy can be submitted to the judgment of one or more arbiters.
Can. 1714 The norms for agreements, for mutual promises to abide by an arbiter's award, and for arbitral judgments 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.
Can. 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.
Can. 1716 §1 If the civil law does not recognize the force of an arbitral judgment unless it is confirmed by a judge, an arbitral judgment 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 judgment 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.
PART IV : THE PENAL PROCESS
CHAPTER I : THE PRELIMINARY INVESTIGATION
Can. 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.
Can. 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.
Can. 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.
CHAPTER II : THE COURSE OF THE PROCESS
Can. 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 defense, 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 canon 1342 1350, outlining at least in summary form the reasons in law and in fact.
Can. 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 promoter of justice, who is to present to the judge a petition of accusation in accordance with canon 1502 and 1504.
§2 Before a higher tribunal, the promoter of justice constituted for that tribunal adopts the role of plaintiff.
Can. 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 promoter 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.
Can. 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.
Can. 1724 §1 At the direction or with the consent of the Ordinary who decided that the process should be initiated, the promoter 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.
Can. 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.
Can. 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 judgment and acquit the accused, even if it is at the same time clear that the period for criminal proceedings has elapsed.
Can. 1727 §1 The offender can appeal, even if discharged in the judgment only because the penalty was facultative, or because the judge used the power mentioned in canon 1344 and 1345.
§2 The promoter of justice can appeal whenever he considers that the reparation of scandal or the restitution of justice has not been sufficiently provided for.
Can. 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.
CHAPTER III : THE ACTION TO COMPENSATE FOR HARM
Can. 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 canon 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. 1734 [7] .
Can. 1730 §1 To avoid excessive delays in a penal trial, the judge can postpone the trial concerning harm until he has given a definitive judgment in the penal trial.
§2 When the judge does this he must, after giving judgment 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.
Can. 1731 A judgment 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 [8]
FOOTNOTES 7 Translators' note: It would appear that this reference should read 'Can. 1730'. 8 Translators' note: It would appear that this reference should read 'Can. 1729'.
PART V : THE MANNER OF PROCEDURE IN ADMINISTRATIVE RECOURSE AND IN THE REMOVAL OR TRANSFER OF PARISH PRIESTS
SECTION I : RECOURSE AGAINST ADMINISTRATIVE DECREES
Can. 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 Ecumenical Council.
Can. 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.
Can. 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 canon. 57 and 1735.
Can. 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.
Can. 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.
Can. 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 time limit begins to run from the day the decree was notified; in other cases, it runs in accordance with Can. 1735.
§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.
Can. 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.
Can. 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 abrogate it.
SECTION II: THE PROCEDURE FOR THE REMOVAL OR TRANSFER OF PARISH PRIESTS
CHAPTER I : THE PROCEDURE FOR THE REMOVAL OF PARISH PRIESTS
Can. 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.
Can. 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 persists after 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
Can. 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.
CHAPTER II : THE PROCEDURE FOR THE TRANSFER OF PARISH PRIESTS
Can. 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.
Can. 1749 If the parish priest proposes not to acquiesce in the Bishop's advice and persuasion, he is to give his reasons in writing.
Can. 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 favor 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.
Can. 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.
Can. 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.
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