ADMINISTRATIVE DISMISSAL OF CLERICS
Canadian Canon Law Society – October 2013
THE RECENT VATICAN FACULTIES
FOR THE ADMINISTRATIVE DISMISSAL OF CLERICS
Rev. Francis Morrisey, O.M.I.
INTRODUCTION
I am pleased to be able to be with you today. I hope that what we will cover here this morning
will be helpful to you.
Almost every diocese and religious institute has one or two - if not more - priests who have
become marginalized, but who have not sought to regularize their canonical situation. The
reasons for this are numerous, and it is not up to us to judge the persons involved.
However, given the increased liability issues that dioceses and institutes are facing today, they
can no longer take the chance of letting these situations fester indefinitely.
Fortunately, the Holy See, recognizing the significance of the issue, has decided to offer a form
of support to Ordinaries who are trying to address the status of priests who are not in a regular
canonical situation. This support comes in the form of faculties granted to certain offices of
the Holy See (the Congregation for Evangelization, and the Congregation for the Clergy – in
addition to those previously granted to the Congregation for the Doctrine of the Faith) to allow
for the administrative dismissal of certain clerics from the clerical state.
These norms are truly exceptional, because at first sight they go against quite a number of
canonical principles, the primary one being that of canon 1342, §2 which provides that
perpetual penalties, such as dismissal from the clerical state, cannot be imposed or declared by
means of an extra-judicial decree. A formal process is required. Yet, we know that many
dioceses are simply not in a position to organize a full-blown formal penal trial with all the
trappings! Other canonical norms that the faculties provide may be derogated from on
occasion are canons 1317 (on the specific cases where dismissal from the clerical state may be
the penalty imposed), 1319 (on threatening perpetual penalties), and 1349 (the judge may not
impose perpetual penalties).
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So, today, I'd like to go through the new faculties with you, and examine their particular
characteristics, as well as the norms to be applied when asking the Holy See to use these
faculties on behalf of dioceses or religious institutes. But, first of all, I think it is important to
set a context. From there, we can look at previous faculties granted by the Holy See in this
regard, consider the various types of penal procedures available, and then move to an
examination of the new faculties themselves.
Before doing so, however, it is important to note that I do not intend to review here - for
reasons of timing - the general canonical norms relating to procedures, as well as the special
norms relating to penal cases. I am taking for granted that these are known (and observed).
Such norms would apply, among other things, to competence, to proofs, to the rights of the
parties, to the qualifications of those involved in the process, to moral certainty, and so forth.
Nor do I intend to review the canons relating to the issuing of decrees. The norms of the Code
are quite straightforward in this regard (see canons 35-58).
Since the application of the faculties is still relatively recent, we do not yet have a formally
established set of principles, as we do for marriage nullity cases (see Dignitas connubii) telling
us how to proceed in particular cases. We have to rely on the text of the faculties and of the
accompanying procedural norms. It could well be that people in this room have had an
experience slightly different from mine when dealing with such cases, and I would welcome
their input as the occasion arises, since we are all here to learn!
I.
THE CONTEXTi
Anyone who has been involved in the application of penal law knows how tricky the entire
field is. There are so many exceptions, excusing causes, and particular provisions made in the
law, that, at times, people simply feel incapable of even trying to apply it. Not surprisingly,
then, the revision of the 1983 Code is beginning with a review of Book VI. We are waiting to
see if the Holy See will go ahead with the promulgation of the revised norms.
The context in which the new norms have been presented is dual: the salvation of souls, and
the good order of the ecclesiastical community.
As Msgr. K. Gillespie, from the Congregation of the Clergy, notes, the special faculties "may
be said to find themselves between two significant developments in the manner in which the
Church lives her life as a community, a society. On the one hand, they demonstrate the
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relationship that exists between the norm of law in the Code of Canon Law 1983 ... and [on the
other] the derogations and special provisions disposed subsequently by the Supreme Pontiffs."ii
There is also, at the same time, the perspective of protecting and even enhancing the rights of
individuals accused of wrongdoing, while at the same time, safeguarding the common good of
the Church community. Pope Benedict spoke of a coherence between life and mission. The
faculties relate to this coherence.iii The life is that of the priest in question; the mission is that
of the ecclesial community.
As to the protection of the rights of the accused, we can note, for instance, that in an extrajudicial procedure, the accused does not have the same opportunity to challenge witness
statements and the admissibility of evidence, as he would in a formal trial. It is for this reason,
that the procedural norms accompanying the faculties are very particular in spelling out the
steps to be followed, almost scrupulously, so that the application of the new faculties not
become identified with the activities of a "star chamber" court.
So, this twofold tension will be noted throughout this presentation – protecting the rights of the
accused, and protecting those of the community of believers.
II.
PREVIOUS LEGISLATIVE ENACTMENTS
The practice of allowing for ex officio dismissal from the clerical state, against the will of the
accused, is not something entirely new in the Church.
1)
Indeed, even under the 1917 Code, the norms of January 3, 1971, for dispensation from
clerical obligations, had provided, in Section VII, for the administrative "reduction to the lay
state [using the terminology of the time] of those priests who would not request a dispensation,
but who, because of their perverted life-style, or their doctrinal errors, or for other grave
causes, had to be removed from the clerical state."iv
2)
More recently, and shortly after the 1983 Code was promulgated, interestingly enough,
the then Cardinal J. Ratzinger wrote on February 19, 1988 to the Council for the Authentic
Interpretation of the Code of Canon Law (now known as the Pontifical Council for Legislative
Texts), noting that granting a dispensation to priests whose life-style was incoherent with their
obligations, seemed to be a contradiction, since a dispensation is a favour, and thus a favour
would be granted in return for immoral behaviour. At the same time, however, he was asking
for a "more rapid and simplified procedure" to deal with such cases. The Council for
Interpretation, at the time, however, preferred not to propose any changes to the Pope.v
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3)
That same year, on June 29, 1988, however, Pastor Bonus referred to what are now
commonly known as the "graviora delicta" subject to the CDF (of which Cardinal Ratzinger
was Prefect), and with which we are all familiar; it authorized in such cases "the imposition of
canonical sanctions in accordance with the norms of common or proper law" (Art. 52).
4)
Then, on March 3, 1997, because of the practical impossibility of applying the
procedural law in judicial penal processes in mission territories, Pope John Paul II formally
authorized the Congregation for the Propagation of the Faith to impose "ex officio dismissal
from the clerical state in certain cases of urgency and gravity of sins against the sixth
commandment." This faculty allowed for an administrative penal process, contrary to the
provisions of canon 1342, §2.vi Interestingly enough, the then Cardinal Ratzinger was the
Relator for the meeting of the Congregation for the Propagation of the Faith, of which he was
a member (in addition to his CDF responsibilities). Also of note was the thinking that "the
procedural law itself could not be permitted to constitute an unforeseen obstacle for Ordinaries
in their obligation to ensure the good government of their Dioceses and the good ordering of
the ecclesiastical Society."vii
5)
In 2001, notwithstanding the applicable canonical norms, Pope John Paul II dismissed 22
priests "ex officio et in poenam" in response to requests from the Congregation for Divine
Worship and the Discipline of the Sacraments.
6)
The current law for matters relating to the CDF was issued in 2001, with
"Sacramentorum sanctitatis tutela" (April 31, 2001), and has been updated periodically since
then.
7)
In spite of these adjustments, a number of canonists still questioned the practice of
granting a dispensation, a favour, in response to delicts committed by a priest. But the
prevailing Vatican thinking is that the dispensation acknowledges the objective unsuitability of
the cleric for ministry in the Church community, and so the response is for the good of the
community, in defence of the integrity of sacred ministry. It also calls the cleric to avail
himself of the grace that has been offered to him.
So, in view of these precedents, we cannot say that the three faculties are entirely new in
canonical history. But, what is new is the fact that they have now become part of the regular
functioning of certain Curial offices.
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III. THE VARIOUS TYPES OF PENAL PROCEDURES
A.
Methods foreseen in the law
Before examining directly the new faculties, we should keep in mind that the ordinary, normal
method of dismissing a priest or deacon from the clerical state is through a formal penal
process. The use of the faculties presupposes that it is not possible, or extremely difficult, to
follow the norms for a penal trial (for reason of personnel, cost, lack of experience, distance,
proof, etc.). Of course, this particular penalty of dismissal can be applied only in those cases
specifically foreseen in the law. It cannot be imposed for other reasons.
1. A preliminary canon – canon 1341
Since penal processes are what we could consider to be the final step in a painful process, it is
important to keep in mind the provisions of canon 1341 regarding prior attempts to resolve the
situation:
Canon 1341: The Ordinary is to start a judicial or an administrative procedure
for the imposition of the declaration of penalties only when he perceives that
neither by fraternal correction or reproof, nor by any methods of pastoral care,
can the scandal be sufficiently repaired, justice restored and the offender
reformed.
1)
This canon is particularly interesting because it outlines the three reasons for holding a
penal process:
- the reparation of scandal within the community;
- the restoration of justice;
- the reform of the offender.
2)
Likewise, three preliminary steps are mentioned, without entering into details:
- fraternal correction;
- reproof;
- methods of pastoral care.
3)
Fraternal correction could involve a one-to-one conversation between a bishop and his
priest (see canon 1339, §1). It could also serve as a warning. For instance, if a priest were
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found to be spending too much time with a particular person, a quiet warning might suffice to
break off the relationship before it became scandalous.
4)
On the other hand, the priest in question might not consider that the situation was that
serious, and continues to meet with that person, even in public. This could then lead to
"reproof", with a formal canonical warning given to the priest to the effect that any future
involvement with this person could lead to the imposition of canonical censures (see canon
1339, §2). We sometimes distinguish between "reproving" someone (which consists in
expressing disapproval without scolding and with the purpose or hope of correcting the fault);
"rebuking" someone (reproving sharply and sternly); and "reprimanding" the person (severe
and public reproof from a public source).
5)
Other methods of pastoral care could include: a transfer to another place, a period of
retreat and recollection, the imposition of a penance, psychological help, spiritual direction,
some form of mentoring, and so forth.
6)
There is also the possibility of removing faculties required for the exercise of a given
office (see canons 764, 974, 1109, 1111).
7)
All of these are executive decisions, brought about by an administrative decree.
2. Formal penal procedures
When we come to penal procedures, we note that there are two major types: the administrative
extra-judicial procedure of canon 1720, which, until now, could not be used in dismissal cases,
unless specifically authorized, because dismissal constitutes a perpetual penalty. The second
type, and the most difficult one, is the full formal judicial penal procedure. To my knowledge,
there have not been many of the latter in Canada, although administrative procedures have
been authorized in certain CDF cases.
B.
The preliminary investigation
In cases where it appears that a delict has been committed, the Ordinary is to conduct a
preliminary investigation (canon 1717 and following). According to the procedural norms, in
cases subject to the first two of the faculties, such a preliminary investigation is indeed
required.viii
For this reason, it might be helpful here to review some of the factors involved in such an
investigation.
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1. The purpose of the inquiry
1)
Any canonical penal trial (whether formal or administrative) must begin with a
preliminary inquiry, as per canon 1717. This has as its purpose to enquire about (1) the facts,
(2) the circumstances, and (3) the imputability of the offence.
If this inquiry is not conducted according to the provisions of the law, the validity of the entire
procedure is compromised. "Well begun is half done."ix
2)
When considering opening a preliminary canonical investigation, we must keep in mind
that sometimes there are simultaneous proceedings in the secular courts (either criminal or
civil). It might be appropriate in certain instances to postpone any formal canonical action
until the secular proceedings are completed, so as to avoid "discovery" issues, and to risk
muddying the waters, since the norms of proof are different in each case. On the other hand,
the bishop would need some type of "process" to justify removing a priest from active ministry
in the meantime and placing him on administrative leave.x
3)
The purpose of the preliminary investigation phase is to gather evidence (testimony,
documents, etc.) leading to a certain degree of moral certitude regarding the offence. Its
purpose is not to prove guilt or impose a penalty; this is the role of the subsequent penal trial
or procedure. In other words, is there a sufficient fumus iuris to justify continuing with a penal
process?
2. The steps
The steps could be outlined in chronological order as follows:
1)
The Ordinary receives information which has at least a semblance of truth (canon 1717,
§1). This new information could be supported by other data presently on file in the chancery
office (i.e., past events).
One issue that has not been completely resolved to date concerns the degree of certitude
required. "A semblance of truth", or information "which seems true" is not the same as the
moral certitude required for a tribunal judgment (or, in some places, "beyond reasonable
doubt"). It would appear that, given the relatively informal nature of the preliminary
investigation, to require moral certitude at this point would prevent the diocese or the religious
institute from conducting an inquiry into the real facts of the case.
2)
By decree (see canon 1719), the Ordinary names a priest delegate to inquire about (1) the
facts and (2) circumstances, and also about (3) imputability.
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It is preferable that the Ordinary remain one step removed from the actual process, to allow for
latitude later on if something has to be corrected or adjusted. This is why it is preferable to
appoint a delegate to carry out the investigation rather than doing it personally. It seems
preferable to designate a priest for this role, since the other personnel must be priests if the
case proceeds to a penal trial. Indeed, the procedural norms note that "the administrative
procedure... can only be carried out by a priest." Since the same sentence speaks of the
preliminary investigation, it could be held that this clause refers to both steps.
As to imputability, it seems to me that it would be important, from the very beginning of the
inquiry, to determine (if possible) if there was indeed a "mens rea" on the part of the accused.xi
This is an essential element of a canonical delict, for, without it, there is no delict in the formal
sense of the term. I realize that the law presumes imputability, but any presumption can be
overturned by proof to the contrary.
As to the inquiry about facts, sometimes, access to the accused's personnel file can provide
helpful background information.
3)
The delegate cannot serve later as a judge in the process (canon 1717, §3). Therefore, if
a diocese doesn't have too many canonists available to serve as judge, it would be important to
keep this in mind when appointing the delegate. (Of course, a bishop can appeal to canonists
from outside the diocese to assist in any eventual process).
Experience shows that the diocesan attorney should NOT be the person to conduct this
preliminary inquiry. The procedures and methods are quite different when it comes to civil or
criminal law issues, and, once again, the waters can become muddied too readily. Likewise,
the diocesan attorney's priority would be to protect the diocese, not the accused, and this would
lead to a potential conflict of interest.
4)
The Ordinary (or the delegate) will determine how to proceed (for instance, personal
interviews, telephone conversations, etc.). Whatever approach is taken, it is important to
observe canon 220 on the right to privacy and reputation.
5)
Since, according to canon 50, before making a decision, the Ordinary should hear those
whose rights can be injured by a decree, it would be good to add a step that the Oriental Code
specifies (CCEO, canon 1469, §3): "Before he decides anything in the matter, the hierarch
[i.e., the Ordinary] is to hear the one accused of the offence and the promoter of justice, and
also, if he deems it prudent, two judges or others expert in the law..." This is not a formal
interrogation (which will follow later), but is a consultation.
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This step could be taken after the statements of those being interviewed have been received
and the preliminary facts gathered.
(We will see momentarily that the application of the faculties requires that, indeed, contact be
made or at least attempted with the cleric before the case is sent to the Holy See).
6)
If the Ordinary (or the Delegate) decides to call in the accused, appropriate arrangements
should be made for him to have suitable canonical and civil law advice. In particular, the
norms of canon 1483 should be observed (the diocesan bishop's approval is required for a
person to act as canonical advocate, even though, at this stage of the process, we are not yet
dealing with a formal appointment of an advocate – rather, the person serves as an advisor at
this point in time).
7)
If this is the first time that the Ordinary (or delegate) is intervening in the situation, it is
not fair to ask the accused priest, on the spot, to resign his parish or to take irrevocable steps
that would damage his rights. This is particularly important if the accused does not yet have
canonical or civil counsel.
We should always keep in mind the fact that the accused is in a most vulnerable position at
this moment. Very often, the accusation has come out of "nowhere" and the accused is at a
loss to explain what happened.xii
8)
The statements of those interviewed should be taken under oath, recorded verbatim, and
signed, so that they can become formal proofs to be used if a formal trial is to be held later.
(Sometimes, the witnesses are unwilling to return to the chancery during a penal trial). There
should be a priest notary (who will carry out the regular functions ascribed to the notary).
Witnesses can be heard anywhere, since this is not a judicial procedure at this moment. (We
cannot impose an oath, however, on the accused – canon 1728, §2).
9)
If it is a case subject to the CDF, having gathered sufficient information, the Ordinary (or
the delegate) can then refer the matter to the diocesan or congregational consultative panel (by
whatever name it is known - Review Board, Advisory Committee, etc.) for a preliminary
overview of the situation.xiii Using principles taken from canon 1942, §2 of the 1917 Code as
a basis, the board could consider the reputation of the person making the complaint;
anonymous letters are not used, unless there are other indications; it could, however, if it saw
fit, act on rumours.xiv
Experience shows that it would be important to share with the consultative panel copies of all
the information received, and not simply rely on the delegate's version of the facts, because
there can, unwittingly, be bias against the accused.
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10) After examining the complaint and other factors, the panel could determine that there is
no credible basis to the information received, and recommend that the matter be dropped. Or,
it could state that it considers that there appears to be some credibility to the accusation and
recommend that canonical processes or a judicial review be undertaken. Especially at this
point in the inquiry, we should keep in mind that the panel's role is consultative and the
Ordinary is not legally bound by its recommendation. Of course, the diocesan attorneys might
not agree with this, and say that the diocese is opening itself up to accusations of negligence if
the bishop does not go along with the consultative panel's recommendation. (The bishop
could, at a later date, return to the panel for suggestions on how to assist the parties involved
once the process itself is completed).
11) There is nothing preventing the same person from serving on the consultative panel of
more than one diocese or religious institute. It is not clear, however, whether one or more
members of this panel can conduct the preliminary investigation and advise the bishop
subsequently. So as to avoid any doubt, I prefer that a priest conduct the inquiry (see No. 2
above). If there were a priest on the consultative panel who could conduct the investigation,
then there would be even better coordination with the panel.
12) If the consultative panel is meeting, it is desirable that the promoter of justice participate
in the discussion. The promoter will then have a better sense of what to do should the
Ordinary decide to proceed with a process.
13) Once the preliminary investigation has gathered appropriate information, and if the
Ordinary has at least probable knowledge of a reserved delict, he is to transmit this information
to the Holy See (usually to the Congregation for the Doctrine of the Faith – CDF), if we are
dealing with one of the reserved cases.
In such instances, the Ordinary should prepare a votum or a recommendation to assist the CDF
in determining the next steps to be taken.
In cases subject to the new faculties, however, it is not required beforehand to inform the Holy
See.
14) If the statute of limitations (i.e., canonical prescription) determines that the right to
process a case has expired, and if it is a CDF case, the Ordinary is to request a dispensation
from the norms of canons 1362-1363 if he wishes to proceed with the case.xv We will see
later, though, that the new faculties do NOT include the possibility of a dispensation from
prescription.
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15)
Msgr Thomas Green makes the following observation:
Before referring a case to the CDF [as well as in other penal cases], church
authority is to inform the accused of the allegation and enable him to respond
barring serious contrary indication. This seems necessary due to the increasing
importance of the preliminary investigation and the need to protect the exercise
of the right of defense. ... The Bishop should share with the accused as much
information as is possible with due regard for the exigencies of
confidentiality.xvi
16) Once the preliminary inquiry is begun, the Ordinary or the Presiding Judge can, in the
meantime, invoke the provisions of canon 1722 (on "administrative leave") in regard to the
accused. It would be fitting that the accused be given the right of defence and the promoter of
justice be heard (keeping in mind that the Code does not call for the mandatory intervention of
the accused at this initial stage of the process; so much depends on whether the accused has
indeed already been heard. It would certainly not be appropriate to impose such measures
without hearing the accused).
17) If the Ordinary decides to proceed to a canonical trial, and it is not a CDF reserved
matter, he issues a second decree, indicating that the matter is to be remanded to the
instruction and penalty phase of the process (canon 1719). This decision is based on a number
of points:
- whether indeed it appears that a canonical crime (delict) has indeed been committed
(keeping in mind that not all sinful conduct is a canonical crime or delict)
- whether the period of prescription has lapsed or not (or if, in CDF cases, the
dispensation has been granted)
- whether the accused is imputable for the act by reason of malice or culpability
- whether it is expedient in the light of canon 1341 to set in motion the process for
declaring or inflicting a penalty
- whether an extra-judicial decree can be issued, or whether the case is one for which a
formal trial is required.
18) The decree must state the conclusion arrived at by the Ordinary, whether he has moral
certainty concerning the sufficiency of the proofs, and, on that basis, whether the instruction
and penalty phase of the penal process is to be undertaken in response to the questions listed in
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canon 1718, §1. Before issuing the decree, the Ordinary can consult two judges or other legal
experts; they could be the same persons who will serve as assesors in the case of an extrajudicial administrative procedure.
19) The Promoter of Justice would then be asked to prepare an introductory libellus ("bill of
complaint"). It is important, when determining the grounds, to make certain that the
appropriate questions are asked. Reference should be made in the libellus to the presumed
existence of a canonical delict, to the required imputability, and to the eventual penalty to be
imposed.
The law does not provide for the instance where the promoter does not wish to proceed, or
does not consider the evidence to be sufficiently strong. The promoter could either ask to be
replaced by another person, or he could initiate the case and determine along the way whether
the court is to proceed to conclusion.
20) The Ordinary might decide that, although the accused priest did commit the offences, he
is labouring under serious psychological problems which call for his being placed in treatment,
or at least call for an intensive psychological evaluation.xvii
21) Also, we must keep in mind that there is a major difference between "stupid" behavior,
or "imprudent" conduct, and a formal canonical delict.
IV. THE FACULTIES
It is now time to begin looking at the actual faculties. In each case, after giving the text of the
actual faculty, we will analyse its contents.
A few preliminary observations, however, would be in order.
1)
The three faculties, granted by Pope Benedict XVI on January 30, 2009, were
communicated to Ordinaries by the Congregation for the Clergy on April 18, 2009. On March
17, 2010, procedural guidelines were issued to complement the contents of the 2009 letter.xviii
Similar faculties (building on the 1997 faculties already in place) had been granted the
previous month to the Congregation for the Evangelization of Peoples (December 19, 2008).
2)
It should be noted that the first two faculties are penal in nature, while the third one is
more of a disciplinary nature. Thus, the procedures will differ for the application of the first
two faculties and for the third one.
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3)
Also, we should note that these faculties do not replace those granted to the CDF, and
which remain in effect; likewise, CDF's exclusive jurisdiction over specified matters relating
to faith and morals is not affected by these faculties.
4)
The faculties apply in cases of deacons and of priests. For deacons, less grave reasons
are required than for priests.
5)
All persons involved in the processing of the three faculties must be priests.
6)
Since we are dealing with the public good, it seems as though a promoter of justice
should be appointed for all of the cases involving any of the three faculties, although no
specific mention is made of him in the procedural norms relating to the use of Faculties I and
II. Likewise, there is to be a duly-appointed notary.
7)
Cases submitted under the first two faculties have to be presented personally to the Holy
Father for granting of the dismissal. Those under the third faculty can apparently be handled
directly by the Congregation for the Clergy, although it is the Pope, either directly or
indirectly, who grants the dispensation from the obligation of celibacy (canon 291).
8)
Most essentially, as the letter of March 17, 2010, indicates: "it is essential to note the
indispensable initial requirement, namely that the impossibility or the extreme difficulty in
following the ordinary canonical means already available, be that the via gratiosa
(dispensation) or the penal judicial route, has been clearly established beforehand. Once this
has been ascertained and documented, then the instruction of the case at the local level should
[proceed]."
A.
Faculty No. I
1. The text of the faculty
This special faculty to treat and present to the Holy Father, for his approval in
forma specifica and his decision, cases of dismissal from the clerical state in
poenam with dispensation from the obligations consequent to ordination,
including that of celibacy, of clerics who have attempted marriage, even if only
civilly, and who, having been admonished, have not withdrawn from this state,
therefore persisting in an irregular and scandalous life (cf. canon 1394, §1), and of
clerics guilty of grave sins against the Sixth Commandment (cf. canon 1395, §12).xix
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2. The content and application of the faculty
1)
The only real procedural novelty in the first faculty is that it allows to derogate from the
provisions of canon 1342, §2, and allows the imposition of a perpetual penalty, namely
dismissal from the clerical state, by an administrative penal process that results in an extrajudicial decree.
2)
The delicts covered here are quite clear in law and, especially, in jurisprudence. We
should keep in mind, though, that certain delicts covered under canon 1395 are reserved
exclusively to the CDF, and thus as such do not come under these faculties.
3)
The first delict mentioned is attempted marriage by a priest or a deacon. The faculty
does not refer to "same-sex marriage", and I don't know if this form of attempted marriage
would come under the heading. If not, the second faculty would certainly apply.
4)
The second delict would be the case of a cleric living in concubinage, without having
gone through a wedding ceremony. Today, this is understood as having "the qualities of
stability and 'cohabitation'."xx Interestingly enough, the jurisprudence of the Congregation for
Institutes of Consecrated Life considers that concubinage can be with a person of either sex.xxi
Cases of widowed or divorced permanent deacons who are cohabiting with a woman have
been presented under this heading and received a positive reply.
5)
As for other sins against "the sixth commandment of the Decalogue", authors have listed
the following: crimes against good mores; seduction, fornication, rape, onanism, artificial
insemination; homosexuality, sodomy, immodest acts, bad words, adultery, bestiality,
prostitution, incest, sins with minors. Some authors, depending on their imagination or lack
thereof (!), simply refer to "crimes of the flesh" or "crimes of lust" without entering into the
gory details.xxii
The phraseology of the canon is so generic as to allow its application to a considerable range
of behaviours that may merit a punitive intervention by ecclesiastical authority.
6)
But, in all of these instances, however, we should note the words of the canon: "some
other external sin... which causes scandal". Therefore, first of all, there must be some element
of publicity in the sense of being verifiable – although the canon does not use the word
"public". Then, secondly, there must be scandal. The canon does not say: "that risks causing
scandal". Therefore, one of the elements of proof will be the scandal that has actually been
caused by the act.
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7)
If, of course, the cleric repents and ceases the activity, then prescription begins to run. In
most of these cases subject to Faculty I, it is three years, although for some it is five years (see
canon 1362).
8)
The faculty itself does not state who may initiate the dismissal process. In mentions
neither the bishop nor another local Ordinary. However, the circular letter of 2010 speaks of
"an Ordinary". It seems from the context that it would be either the Ordinary of the cleric
when he attempted marriage, or of his present domicile. It can also be initiated by major
religious superiors who are Ordinaries.
9)
Also, we should note that the faculty explicitly refers to the cleric being admonished.
Therefore, reference to this step will have to appear in the acts of the case.
B.
Faculty No. II
1. The text of the faculty
The special faculty to intervene in accord with canon 1399, either by taking
direct action in a case or by confirming the decisions of Ordinaries, were the
competent Ordinary so to request, due to the special gravity of the violation of
law and the need or urgency to avoid an objective scandal.
Canon 1399 reads as follows:
Besides the cases prescribed in this or in other laws, the external violation of
divine or canon law can be punished, and with a just penalty, only when the
special gravity of the violation requires it and necessity demands that scandals
be prevented or repaired.
2. The content and application of the faculty
1)
In order to apply canon 1399, it is necessary to establish culpability, in accordance with
the procedures laid down in the law; in addition, it is essential to establish the special gravity
of the violation of a law which, on its own, would not merit the penalty of dismissal from the
clerical state.
2)
It is also necessary, therefore, to show the connection between the two - the gravity of
the fault, and the danger of scandal. But it is not necessary that the scandal have already
occurred.
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3)
The process to be followed is the same as for the first faculty (and we shall examine the
procedure momentarily). Thus, the relevant canons relating to the collection of proofs, the
right of defence and the weighing of evidence are to be followed, along with those concerning
the suitability of a penalty.
4)
Again, it is important to note that Faculty II does not provide for a dispensation from
prescription. Of course, if the act in question is still on-going, then prescription hasn't started
to run (see canon 1362, §2).
5)
Among examples, we could mention a priest who has left the Church and either joined
another Church, or started his own one. Or, a priest who has entered into a same-sex marriage
(if Faculty I would not apply, under the heading of "concubinage"). There could also be
example of extreme money laundering or extortion, violence (and possibly gun-running),
contempt of Church authority, and the like.
C.
Faculty No. III
1. The text of the faculty
The special faculty to handle cases of clerics who having freely abandoned the
ministry for a period of more than five consecutive years and who, after careful
verification of the facts insofar as this is possible, persist in such freely chosen
and illicit absence from the ministry, taking this situation into account, to
declare then their dismissal from the clerical state, with dispensation from the
obligations consequent to ordination, including that of celibacy.
2. The content and application of the faculty
1)
It is important to note that this third faculty is in no way penal. It is not the imposition of
dismissal from the clerical state as a penalty. Rather, it is a means to address the situation of
clerics who have illicitly left the exercise of the sacred ministry of their own volition for a
period of five consecutive years, and who refuse to reconsider their situation and return to the
exercise of ministry, and who refuse to seek a dispensation from clerical obligations, or against
whom it is not possible to hold a penal trial (for instance, because of lack of proof, absence of
imputability, etc.).xxiii
2)
It is essential to note that not any return to ministry is sufficient. The cleric must do so
according to the discipline and the doctrine of the Church, and according to the manner
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determined by the Ordinary in accord with the norm of law. One cannot simply return to
ministry on his own terms.
3)
It often happens that a cleric might want to return, but has been judged unsuitable for the
exercise of ministry (for instance, those on whom a life of prayer and penance has been
imposed because of sexual abuse).
4)
Before re-admitting a cleric, an Ordinary would have to verify three things:
- contumacy has come to an end;
- there is no danger of scandal;
- justice has been restored, as the case may be (see canon 1341).
5)
If, of course, the cleric repents, but does not wish to return to ministry, then the ordinary
process for dispensation would be followed.
6)
Faculty III provides a means of bringing to an end a situation which creates serious
disturbance in the ecclesiastical community, and which prevents the Ordinary from
maintaining ecclesiastical discipline.
7)
One of the practical difficulties arising in the application of Faculty III is that often there
is an element of scandal involved. This means that the second Faculty could (should?) have
been used instead. The Ordinary will have to evaluate such a situation carefully.
8)
There are three elements to consider in cases studied under this heading:
- voluntary absence
- illicit absence
- lasting for more than five consecutive years.
A priest who requested indefinite leave of absence and received it, is not illegitimately
absence. But, a priest who requested such a leave for a specific period of time, and who, once
the time has expired, refuses to return or request a dispensation, is now subject to the
application of the Faculty.
A priest who has been placed on leave (see canon 1722) is not illegitimately absent, and,
apparently, the faculty does not apply in this case. Personally, I have a question about a priest
who, for instance, having been in prison, is not allowed to return to ministry once he has been
released, and yet who refuses to request a dispensation. Does the faculty apply after five
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years? I have not seen replies in this regard to be able to determine how the Holy See
evaluates such situations.
9)
In order to demonstrate canonically the existence of "five years" of illegitimate absence,
it would be most helpful to have a "paper trail", so as also to be able to show (through written
documents) the efforts that the Ordinary made when the priest left ministry, to try and have
him change his mind. Also, a decree showing that faculties were removed, or even, according
to circumstances, that the penalty of suspension or other penal remedies were applied.
V.
THE PROCEDURES
A.
General procedure to apply canon 1720
The procedure for the application of the penalty of dismissal under Faculties I and II, derives
from an administrative penal process that concludes with the issuance of an extra-judicial
decree.
This decree could be issued either by the Ordinary himself (who would then send it to the Holy
See for consideration), or by the Congregation for the Clergy.
Four elements are to be kept in mind when dealing with canon 1720:
-
the collection and weighing of proofs;
moral certainty concerning the crime, or canonical delict;
the imputability of the accused;
the suitability of the penalty of dismissal for the delict in question.
It is presumed in such instances that the procedures outlined in canons 1717-1719 have been
duly applied (see above re the preliminary investigation).
Three particular steps are required in the process.
1. Notification of the accused
1)
The accused must be notified of the accusation and of the evidence presented; he is to be
afforded the right to present a defence.
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2)
He also has the right to avail himself of canonical representation through a dulyappointed advocate, with at least the tacit approval of the Ordinary (see canon 1483). If he
refuses to have an advocate, the case can proceed nevertheless.
3)
If the accused is duly and legitimately cited, but refuses to cooperate, to appear, or
otherwise fails to respond, he should be declared absent by decree (canon 1592, §1). In this
way, his right to appear later in proceedings remains intact, and he should continue to be
notified concerning the formal acts of the process, and, again, afforded an opportunity to
present a defence.
2. The role of the assessors
1)
When all the evidence has been collected, it is to be submitted for the review of two
priest assessors, who shall have been duly appointed by decree at the outset of the proceedings.
2)
Given the gravity of the matters, it would be most appropriate that they be qualified in
canon law, although this is not formally prescribed.
3)
The assessors ought to be prudent and judicious individuals, and esteemed for their
impartiality.
4)
They should be given sufficient time to examine the proofs thoroughly and to arrive at
their conclusions. They are to submit written and signed opinions.
5)
They then meet with the Ordinary to discuss the matter among themselves. A record is
drawn up of the discussions and the outcome thereof. The minutes are signed by the Ordinary
and by the assessors.
6)
The Ordinary is not bound by the opinion of the assessors, and they do not sign the
eventual decree.
3. The decree
1)
The Ordinary issues his decree according to the norms of canons 1344-1350, if he is
certain that the delict has been proven and is imputable to the accused, and has not fallen into
prescription.
2)
The decree, like any decree for that matter, must present the reasons in law and in fact
for the decision reached, at least in summary fashion (see canon 50). The more motivated the
decree is, the stronger it becomes when presented to the Holy See for consideration.
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3)
The acts, along with the votum of the Ordinary, and the petition for the application of the
faculty, are to be presented to the Holy See.
B.
Special procedural norms for the application of each of the faculties
1. The application of Faculties I and II
The following documents are to be included in the acts. They correspond to the procedural
steps to be observed.
1)
The cleric's curriculum vitae.
2)
Certificates of baptism, confirmation, ministries, ordination(s).
3)
Copy of the scrutinies prior to Ordination; profession of faith; other documents relating
to his formation (seminary reports, academic transcripts).
4)
If applicable, a copy of the civil marriage document.
5)
Documentation showing how it is not possible (or extremely difficult) to hold a formal
trial.
6)
Previous applications of the provisions foreseen by the Code (suspension, removal of
faculties, etc.).
7)
Pastoral attempts made by the Ordinary to have the cleric desist from contumacy.
8)
Decrees of the Ordinary relating to the preliminary investigation, and to the opening of
the procedure; formulation of the charges brought against the accused.
9)
The appointment of the two assessors, the instructor, (the promoter of justice), the
notary.
10)
Procedural documents:
- interrogation of the cleric (or a statement from him demonstrating his awareness of
the procedure and the proofs brought against him; he does not intend to change his
way of living; nor does he intend to seek a dispensation;
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- or, if not possible to locate him, documents showing attempts to contact him or
showing that he refused the citation;
- interrogatory and declarations of witnesses (three, if possible); copies of their citation
and notification;
- other pertinent documents or statements from experts (such as reports from
Southdown, etc.).
11)
Act of conclusion of the instruction.
12)
Personal votum of the instructor.
13)
A document transferring all the acts to the Ordinary.
14) Decree of the Ordinary convoking the meeting with the assessors, and citation of the
asssessors.
15) Minutes of the meeting for the consideration of the proofs, which must detail the
discussion and evaluation of each single charge and indicate the individual opinion of each
assessor regarding the issues raised.
16) The personal votum of the Ordinary, detailing the facts and the applicable law pertaining
to each charge.
17) The petitio of the Ordinary of incardination of the cleric, requesting the Holy See to
accept the case under Faculty I or II, as the case may be.
2. The application of Faculty III
1)
The Ordinary who requests the application of the faculty is the Ordinary of incardination.
He must have moral certainty about the non return of the priest to ministry.
2)
The instruction can be entrusted to a suitable priest (not necessarily from his diocese or
institute).
3)
The promoter of justice must be involved, to protect the public good.
4)
The notification of the acts may be made through postal service or other secure means.
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5)
The instructor will prepare a summary of the case and a votum, based on the objective
facts.
6)
The promoter of justice presents his votum, as does the Ordinary.
A number of documents are to be included in the file:
1)
The cleric's curriculum vitae.
2)
Certificates of baptism, confirmation, ministries and ordination(s).
3)
Copies of scrutinies prior to ordination; profession of faith; formation reports; academic
results.
4)
If applicable, copy of the civil marriage document.
5)
Documentation showing previous efforts of the Ordinary to bring the cleric back; penal
remedies applied.
6)
Documentation showing the impossibility (or extreme difficulty) of holding a formal
trial.
Example:
DECLARATION RELATING TO THE IMPOSSIBILITY OR THE EXTREME
DIFFICULTY OF APPLYING THE ORDINARY MEANS TO RESOLVE
ISSUES, AND THE PASTORAL ATTEMPTS MADE BY THE ORDINARY.
1.
As Bishop of the Diocese of X.Y.Z., I hereby certify that, in spite of numerous
efforts made to contact Father A.B.C., these have all remained unsuccessful. The
purpose of these contacts was to offer him the possibility of applying for a
dispensation from clerical obligations.
2.
Father A.B.C. made no attempt whatsoever to contact me as Bishop, and to
make this application.
3.
When the difficulties first arose, he was sent for residential counselling (nine
months), followed by additional out-patient counselling in K.L.M. This
supplementary counselling brought out the fact that it was considered by the
specialists that Father A.B.C. "was suffering from a severe mental or personality
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disorder that had not been previously diagnosed." Although he was considered to
have "at least average intellectual skills", he was unable to use them in an effective
manner. Therefore, as noted in the report, "he had not been able to gain any insight
nor sense of personal responsibility for his departure from the diocese. There was
clearly a mental disorder interfering with his intellectual skills that was not
diagnosed during his seminary training nor through the more recent personality
assessment" (Report of [date]).
4.
There was no known follow-up on Father A.B.C.'s part to address these issues
or to continue counselling.
5.
During the past two years, both I and the Chancellor of the Diocese have
consistently tried to contact him, by registered mail (which letter was received, but
remained unanswered) and by telephone messages (to which he never replied).
6.
In view of the fact that he has shown clearly that he does not intend to
cooperate, it would be futile to hold a formal judicial trial in his absence.
In faith of which, I hereby sign this [date]
+N.N.,
Bishop of X.Y.Z.
Rev. P.Q.R.,
Chancellor
7)
Decree of the Ordinary appointing the Instructor, the Promoter of Justice, and the notary.
(Note: there are no assessors designated in cases processed under Faculty III).
Example:
DECREE APPOINTING PERSONNEL
In order to process my request, as Bishop of the Diocese of X.Y.Z., that the Rev.
A.B.C. be dismissed from the clerical state, I hereby designate the following priests
to carry out the instruction of this process.
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In doing do, they are to follow the procedural norms outlined by the Congregation
for the Clergy, in its circular letter of March 17, 2010 (Prot. No. 2010 0823).
INSTRUCTOR:
PROMOTER OF JUSTICE:
ASSESSORS:
NOTARY:
and other priests if necessary
Rev. ...
Rev. ...
Rev ..... ; Rev. ....
Rev. ...
Given at X.Y.Z., this [date]
+N.N.,
Bishop of X.Y.Z.
(Rev.) P.Q.R.,
Chancellor
8)
Procedural documents:
- interrogatory of the cleric, or a statement from the cleric stating his intention to seek a
dispensation;
- advising the cleric of his right to present an advocate of his choosing;
- documentation showing efforts that were made to contact the cleric, if he is not
cooperating;
Example:
STATEMENT CLARIFYING THE REFUSAL OF FATHER A.B.C. TO ACCEPT THE
CITATION
On [date], I sent a registered letter to Father A.B.C., informing him of my intention
to initiate a process for his dismissal from the clerical state.
The letter was duly received and signed for, but there was no follow-up to it.
Another letter from sent on [date], but not claimed.
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Numerous telephone messages were left unanswered.
In accordance with the spirit of the provisions of canons 56 and 1510 (with the
necessary adaptations), I consider that he has been duly cited, but has refused to
accept the invitation to present himself for a hearing.
X.Y.Z., [date]
+N.N.,
Bishop of X.Y.Z.
(Rev.) P.Q.R.,
Chancellor
- testimony or depositions of the witnesses (preferably three); their citation and
notification;
Example of citation:
To Rev. D.E.F.
[Address]
Date
Dear Father D.E.F.
Re: Rev. A.B.C.
Since, as Vicar General, you have been previously involved with the situation of
Father A.B.C., a priest of the Diocese of X.Y.Z., and since it is my intention to
request of the Holy Father that he be dismissed from the clerical state, I would ask if
you would accept to serve as a witness in the case.
The hearing will be at the rectory in L.M.N., [date], at [time].
Thanking you for your cooperation in this matter, I am,
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Yours very truly,
+N.N.,
Bishop of X.V.Z.
(Rev.) P.Q.R.
Chancellor
- documents or statements from experts (for instance, Southdown reports, if available).
9)
Documentation showing how the notifications were executed by the postal service or by
some other secure means.
10)
Act of conclusion of the instruction.
11)
The personal votum of the instructor, outlining the course of the instruction process.
12)
Document from the instructor transferring all the acts to the Ordinary.
Example:
Having examined and reviewed all the available documentation, having heard the
two witnesses presented, and being unable to hear the priest in question because of
his refusal to cooperate, I hereby declare that I consider the instruction of this case
to be closed.
I hereby ask that all the documents relating to this case be forwarded to the Most
Rev. N.N., Bishop of X.Y.Z., so that he may prepare his own personal votum and
transmit the Acts to the Holy See for decision.
13)
The votum of the promoter of justice.
Example:
It seems to me that Father A.B.C. was ordained for the wrong reasons – and not to
serve as a priest working for the Diocese and for the glory of God. He seems rather
to have been ordained for some other reasons.
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I have known him personally since .... when we were in the Seminary together, and I
remember being surprised to learn that he was being ordained a priest for the
Diocese of X.Y.Z.
From 19... until 20..., his years of ministry seem to have been rather secretive. He
seems to have hidden himself for his own works and for other things that we ignore.
His ministry was very minimal.
I agree very much for him to be dismissed from the clerical state, for his own
personal good, and for that of the people of the Diocese, and for the good of the
Diocese itself.
I agree with the procedures that were followed and we did everything we could to
protect his rights. Given the circumstances, we could not do anything more.
14)
The personal votum of the Ordinary, outlining arguments in law and in fact.
15)
The petition of the Ordinary for the application of Faculty III.
Example:
His Eminence Cardinal Mauro PIACENZA,
Prefect,
Congregation for the Clergy,
VATICAN CITY STATE,
00120 Europe
Your Eminence,
Re: Rev. A.B.C., Dismissal from the clerical state
I am hereby forwarding to you three copies of a file relating to a priest of the
Diocese of X.Y.Z.
In view of the contents of your circular letter of March 17, 2010 (Prot. No. 2010
0823), I would ask that you apply Faculty No. III to this situation, and have a decree
of dismissal from the clerical state issued in relation to Father A.B.C.
If something is missing from the file, or if you would require additional
information, I would do my best to provide it for you.
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Thanking you for the attention you will give this matter, I am, yours very gratefully,
+N.N.
Bishop of XYZ
VI. SPECIAL NOTES
1)
We should keep in mind that we are dealing with faculties, and not with permanent
provisions of the law. Therefore, it is at the discretion of the Congregation for the Clergy to
determine whether or not a specific case will be accepted. Although Ordinaries have the right
to present cases, they do not have the right to receive an affirmative response.
2)
The Congregation has established stringent procedural rules to be followed in each case.
One of the purposes of these rules is to make certain that the rights of the cleric have been
observed as much as possible. Therefore, there are no shortcuts when presenting such cases for
approval.
3)
Three copies of the acts must be sent to the Holy See.
The acts are to be authenticated by the notary (each page), ordered and bound together (for
instance, in a three-ring binder, or an Accopress binder).
The acts are also to be numbered, paginated and indexed.
Illegible handwritten documents are not accepted. Where such documents exist, they are to be
transcribed in typewritten form.
I have found that it is preferable to use numbered tabs, with the table of contents referring
explicitly to the content of each tab.
CONCLUSION
While these new faculties won't resolve all outstanding issues relating to clerics, they are a
great help in dealing with many of the instances that Ordinaries have to face.
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If applied correctly, they can free the diocese or institute from potential obligations arising
from actions of the priest, but they can also free the priest to resume his life in the Church and
enjoy peace of conscience.
Rev. Francis Morrisey, O.M.I.
Professor Emeritus, Faculty of Canon Law,
Saint Paul University
Ottawa, ON K1S 1C4
Canada
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NOTES
i.
In this section, I am making use of the most helpful and important paper presented by Msgr. K.
Gillespie, of the Congregation for the Clergy, May 15, 2013, in CANON LAW SOCIETY OF
GREAT BRITAIN AND IRELAND, Annual Conference 13-17 May, 2013, pp. 59-76. Also, I
am making abundant use of two articles in Studies in Church Law, 5 (2009), pp. 45-78, with
commentaries on the faculties by W.H. WOESTMAN and R.E. JENKINS.
ii.
K. GILLESPIE, loc. cit., p. 59.
iii.
See Pope BENEDICT XVI, Address to the Congregation of the Clergy, March 16, 2009; see
www.vatican.va.
iv.
Taken from CDF text on Vatican website.
v.
See J.I. ARRIETA, "Cardinal Ratzinger's Influence on the Revision of the Canonical Penal Law",
in Origins, 40 (2010-2011), pp. 494-498, at p. 496.
vi.
See K. GILLESPIE, loc. cit., p. 62.
vii.
See ibid.
viii.
See ibid., pp. 67-68.
ix.
In regard to this preliminary inquiry, I would recommend to your attention an article recently
published by J.J. FOLEY, "Preliminary Investigation: Considerations and Options", in P.M.
DUGAN, Ed., Towards Future Developments in Penal Law: U.S. Theory and Practice,
Montreal, Wilson & Lafleur, 2010, pp. 33-54. Likewise, I acknowledge my debt of gratitude to
Rev. Patrick Lagges for his intensive study: The Preliminary Investigation. See "The Penal
Process: The Preliminary Investigation in Light of the Essential Norms of the United States", in
Studia canonica, 38 (2004), pp. 369-410. See also, ID, "Elements of the Preliminary
Investigation, in P. DUGAN, ed., Advocacy Vademecum, Montreal, Wilson & Lafleur, 2006, pp.
153-168. See also D. ALBORNOZ, "Norme e orientamenti della Cheisa cattolica dinanzi agli
abusi sessuali di minori perpetrati du chierici", in Salesianum, 70(2008), pp. 711-726.
x.
In this regard, see D. BARR, "Trial Advocacy", in Canon Law Society of America Proceedings,
69 (2007), pp. 81-91, esp. p. 85.
xi.
See B. DALY, "Penalties and their Imposition according to Canon Law", in The Canonist, 2
(2011), pp. 167-183, esp. p. 171.
xii.
In this regard, see D. BARR, "Trial Advocacy", in Canon Law Society of America Proceedings,
69 (2007), pp. 81-91, esp. p. 85.
xiii.
T.J. GREEN, loc. cit., p. 174, notes as follows: "Review boards, however valuable in fostering
judicious decision-making do not replace the bishop's (ordinary's) discernment and exercise of a
distinctive governance role in addressing such issues. Said review boards raise various questions,
among which are the precise scope of their responsibilities and their relationship to the bishop,
the preliminary investigator, and the accused. Furthermore, one may wonder whether the review
board in practice serves as the 'two judges or other experts in the law' the ordinary may consult in
deciding on the appropriateness of a penal process."
xiv.
This was not formally prescribed in the 1983 Code, but was left to the bishop's prudent discretion
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– see Communicationes, 12 (1980), p. 189. In those dioceses where a consultative panel has been
established, the bishop could delegate this responsibility to it.
xv.
In regard to prescription, see C.G. RENATI, "Prescription and Derogation from Prescription in
Sexual Abuse of Minor Cases", in The Jurist, 67 (2007), pp. 503-519.
xvi.
T.J. GREEN, loc. cit., p. 174.
xvii. In this regard, I would recommend the study by G.T. JORGENSEN, "Navigating the Minefield of
the Psychological Evaluation", in CLSA Proceedings, 70 (2008), pp. 177-192. The issue of free
consent on the part of the accused is fundamental.
xviii. For a commentary on these two documents, see F. PAPPADIA, "Congregazione per il Clero,
Lettera Circolare per l'applicazione delle tre 'Facoltà speciali' concesse il 30 gennaio 2009 dal
Sommo Pontefice: Ambito e procedimento di applicazione della Facoltà speciali della
Congregazione per il Clero", in Ius Ecclesiae, 23 (2011), pp. 235-251.
xix.
See, for instance, J. TUOHEY, "The Correct Interpretation of Canon 1395: The Use of the Sixth
Commandment in the Moral Tradition from Trent to the Present Day", in The Jurist, 55 (1995),
pp. 592-631.
xx.
See K. GILLESPIE, loc. cit., p. 68.
xxi.
See S. HOLLAND, "Canonical Dismissal from Institutes of Consecrated Life and Societies of
Apostolic Life", in Studies in Church Law, 2 (2006), pp. 61-84, at p. 66: "While traditionally this
has been understood to be a relationship with the 'opposite sex', in today's society it is necessary
to realize the broader application of the law. Whether heterosexual or homosexual, such a
relationship is a violation not only of the sixth commandment, but also of the religious vow of
chastity."
xxii. See P. CIPROTTI, "De consummatione delictorum attento eorum elemento objectivo: Caput IV",
in Apollinaris, 9(1936), pp. 404-414, esp. p. 414.
xxiii. See K. GILLESPIE, loc. cit., p. 71.
-----
Vatican City, 18th April 2009
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Prot. N. 2009 0556
To The Eminent and Most Excellent Ordinaries
At Their Sees
Your Eminence, Your Excellency,
On the 30th January last, the Supreme Pontiff granted certain special faculties to this
Congregation. The purpose of this Circular Letter is to present these faculties to all Ordinaries
so that the reasoning behind them and the ends which they seek to accomplish are clearly
understood in the manner in which they were originally intended.
The Congregation was moved to write this letter to the Most Rev. Ordinaries by virtue
of its ardent desire to honour the mission and person of those priests who, faithful to their
authentic priestly identity and mission, think, act and live in a counter-cultural manner in this
heavily secularized moment in history, as well as to assist the Successors of the Apostles in
their daily task of preserving and promoting ecclesiastical discipline for the benefit of the
entire body of believers.
1.
The ministerial priesthood has its roots in the apostolic succession and is imbued with
sacred power, which consists of the faculty and the responsibility of acting in the person of
Christ, Head and Shepherd. "The missionary dimension of the priest is born from his
sacramental configuration to Christ the Head: this carries with itself, as a consequence, a
happy and total adhesion to that which the tradition of the Church has called the apostolica
vivendi forma. This consists in participating in a spiritually intense "new life", in that "new
style of life" which has been inaugurated by the Lord Jesus and has been lived by the Apostles
themselves../..Certainly, a great ecclesial tradition has distinguished the sacramental efficacy
from the concrete existential situation of the individual priest, in this way sufficiently
safeguarding the legitimate expectations of the faithful. However, this right doctrinal precision
takes nothing away from the necessary, indeed the indispensible tension leading towards moral
perfection, which must find a place in every authentically priestly heart". Therefore, priests are
called to continue the presence of Christ, the one high priest, embodying His way of life and
making Him visible in the midst of the flock entrusted to their care: this is the true source of
strength for every pastoral vocation, which is constituted by the lived coherent testimony of
one's consecration, nourished by prayer and penitence.
2.
All this is particularly important in understanding the theological reasoning behind
priestly celibacy, since the will of the Church concerning it finds its expression, ultimately, in
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that particularly appropriate link which exists between celibacy and priestly Ordination
whereby the priest is configured to Jesus Christ, Head and Spouse of the Church. The Church,
being the Spouse of Jesus Christ, wishes to be loved in the total and exclusive manner with
which Jesus Christ loved her, as her Head and Spouse. Priestly celibacy is, therefore, the gift
of oneself in and with Christ to His Church, and expresses the service of the priest to the
Church in and with the Lord. Indeed, for this reason the Church has reaffirmed at the Second
Vatican Council and repeatedly in the subsequent Pontifical Magisterium the "firm will to
maintain the law that demands perpetual and freely chosen celibacy for present and future
candidates for priestly ordination in the Latin rite". Priestly celibacy, as indeed apostolic
celibacy more generally, is a gift that the Church has received and wishes to protect, convinced
as she is that this is a good for herself and for the world. To this end canon 277, C.I.C. states:
"§1. Clerics are obliged to observe perfect and perpetual continence for the sake of
the kingdom of heaven and therefore are bound to celibacy which is a special gift of
God by which sacred ministers can adhere more easily to Christ with an undivided
heart and are able to dedicate themselves more freely to the service of God and
humanity.
§2. Clerics are to behave with due prudence towards persons whose company can
endanger their obligation to observe continence or give rise to scandal among the
faithful.
§3. The diocesan bishop is competent to establish more specific norms concerning
this matter and to pass judgment in particular cases concerning the observance of
this obligation".
3.
The Bishop has, among other things, the duty to remind priests of their obligation to
perfect and perpetual continence for the sake of the Kingdom of Heaven, an obligation freely
and willing assumed by them at the moment of their ordination. Moreover, the Bishop must
always be attentive that the priest is faithful in carrying out his proper ministerial duties (Cf.
canons 384, 392). In fact "Bishops, as vicars and ambassadors of Christ, govern the particular
churches entrusted to them by their counsel, exhortations, example, and even by their authority
and sacred power". There exists between them and their priests a communio sacramentalis by
virtue of the ministerial and hierarchic priesthood, which is a participation in the one
priesthood of Christ.
Certainly the bond of subordination between priests and the Bishop concerns the area
of the exercise of their proper ministry, which they must exercise in hierarchical communion
with their own Bishop. The relationship which exists between the Bishop and his priests
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cannot, in its canonical aspects, be reduced either to the relationship of hierarchic
subordination of public law in the juridical system or to a dependent relationship of an
employer to an employee. It is not uncommon to find in society those who, misunderstanding
the sacramental relationship of the Bishop to priest, mistakenly perceive it as the same as that
which exists between a director of a business and his workforce.
In this type of situation, "since he must protect the unity of the universal Church, a
bishop is bound to promote the common discipline of the whole Church and therefore to urge
the observance of all ecclesiastical laws" (canon 392, §1) and he must be vigilant lest abuses
insinuate themselves into ecclesiastical discipline (cf. canon 392, §2 CIC).
In fact the diocesan Bishop must accompany priests with particular concern, ensuring
that their rights are protected (Cf. canon 384). The vast majority of priests live out their
priestly identity daily with serenity and exercise faithfully their proper ministry; but, "when
situations of scandal arise, especially on the part of the Church's ministers, the Bishop must act
firmly and decisively, justly and serenely. In these lamentable cases, the Bishop is required to
act promptly, according to the established canonical norms, for the spiritual good of the
persons involved, for the reparation of scandal, and for the protection and assistance of the
victims". In this context even the penalty ultimately provided for by the Bishop, "is seen as an
instrument of communion that is as a means to restore what is lacking in the individual and in
the common good, when members of the People of God act in an anti-ecclesial manner which
is criminal and scandalous".
One must make clear, however, that the diocesan priest, who is not merely the passive
executor of commands received from the Bishop, enjoys autonomy in making decisions both
in his ministry and in his personal and private life. Thus he is personally responsible for his
personal actions and for those carried out in the scope of his ministry. As a consequence, a
Bishop cannot be held juridically responsible for the acts which a diocesan priest carries out in
transgression of the canonical norms, universal or particular. This principle is not new and has
always been part of the patrimony of the Church, means, among other things, that the criminal
action of a priest, and its penal consequences as well as any eventual payment of damages, is
imputable to the priest who has committed the offence, and not to the Bishop or to the
Diocese, of which the Bishop is the legal representative (Cf. canon 393).
4.
It is reaffirmed that in exercising his judicial function, the Bishop should keep in
mind the following general criteria:
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«(a) Without prejudicing the exercise of justice, the Bishop should encourage the
faithful to resolve their differences peacefully and seek to be reconciled at the
earliest opportunity, even after the canonical process has begun, thereby avoiding
the prolonged animosity to which judicial processes often give rise (Cf. canon
1446 CIC).
(b) The Bishop should observe and require others to observe the procedural norms
established for the exercise of judicial power, since he recognizes that these rules
are no mere formality, still less an obstacle to be circumvented, but are a necessary
means for establishing the facts and for administering justice (Cf. canons 135, §3
and 391 CIC).
(c) If he receives notice of behaviour which gravely damages the common good of
the Church, the Bishop should investigate with discretion, either by himself or
through a delegate, the facts and the imputability of the accused (Cf. canon 1717
CIC). When he judges that he has assembled sufficient proof of the facts which
gave rise to the scandal, he should proceed formally to correct or admonish the
accused (Cf. canons 1339-1340 CIC). Yet when this does not suffice to repair the
scandal, restore justice and bring about the rehabilitation of the person, the Bishop
should proceed with the imposition of penalties, which may be applied in either of
two ways (cfr. canons 1341 and 1718 CIC)
–
by means of a regular penal process in a case for which canon law
requires it, given the gravity of the penalty, or when the Bishop judges
it more prudent (Cf. canon 1721 CIC);
–
by means of an extra-judicial decree, in conformity with the procedure
established in canon law (Cf. canon 1720 CIC)».
5.
However, one must acknowledge that situations of grave lack of discipline on the part of
some clergy have occurred in which the attempts to resolve the problems by the pastoral and
canonical means, foreseen in the Code of Canon Law, are shown to be insufficient or
unsuitable to repair scandal, to restore justice or to reform the offender (Cf. canon 1341 CIC).
This Dicastery, with the intention of promoting the salus animarum, the supreme law
of the Church, and responding to the exigencies often sadly experienced by not a few Bishops
in their day to day governance, decided that it was opportune to place the aforementioned
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special faculties before the Sovereign Pontiff for his consideration and on the 30th January last,
the Supreme Pontiff conceded to this Congregation:
I
The Special Faculty to treat and present to the Holy Father, for His approval in forma
specifica and His decision, cases of dismissal from the clerical state in poenam with
dispensation from the obligations consequent to ordination, including that of celibacy, of
clerics who have attempted marriage, even if only civilly, and who, having been
admonished, have not withdrawn from this state, therefore persisting in an irregular and
scandalous life (Cf. canon 1394, §1); and of clerics guilty of grave sins against the 6th
Commandment (Cf. canon 1395, §§1-2);
II
The Special Faculty to intervene in accord with canon 1399 CIC, either by taking direct
action in a case or by confirming the decisions of Ordinaries, were the competent
Ordinary so to request, due to the special gravity of the violation of law and the need or
urgency to avoid an objective scandal.
This is granted along with the derogation from the prescriptions of canons 1317, 1319,
1342, §2 and 1349 CIC, with respect to the application of perpetual penalties, to be
applied to deacons only for grave reasons and to priests for the gravest reasons, always
requiring that such cases are presented to the Holy Father for His approval in forma
specifica and for His decision, and,
III
The Special Faculty to handle cases of clerics, who having freely abandoned the ministry
for a period of more than five consecutive years and who, after careful verification of the
facts, insofar as this is possible, persist in such freely chosen and illicit absence from the
ministry, taking this situation into account, to declare then their dismissal from the
clerical state, with dispensation from the obligations consequent to ordination, including
that of celibacy.
Once the necessary conditions are present, if a Prelate deems it appropriate to avail
himself of the foregoing faculties, he should be aware of the following information and
procedures.
6.
This Congregation has studied the cases of clerics, priests and deacons, who:
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- attempt marriage, even civilly and, having been warned, have not withdrawn from
this state, but instead have persevered in their irregular and scandalous conduct (Cf.
canon 1394 §1);
- live in concubinage and commit other grave delicts against the sixth commandment
of the Decalogue (cf. canon 1395, §1-2) and who do not demonstrate any sign of
mending their ways, despite repeated warnings, nor show any intention to request the
dispensation from the obligations arising from Sacred Ordination.
Often in such cases, the penalty of "suspension" and of irregularity, in the sense of canon
1044, §1, 3, have not been demonstrated to be sufficiently effective or suitable to repair the
scandal caused, to restore justice, and to reform the offender (Cf. canon 1341). In fact, only
through dismissal from the clerical state, according to the norm of canon 292 CIC, would the
cleric also lose the rights pertaining thereto and would no longer be bound by any obligations
of that state.
Hence, His Holiness has deigned to concede to the Congregation for the Clergy the
special faculties to:
to handle and present to the Holy Father, for His approval in forma specifica and
decision, cases of dismissal from the clerical state in poenam with the consequent
dispensation from the obligations consequent to ordination, including that of
celibacy, of clerics who have attempted marriage, even if only civilly, and who,
having been admonished, have not withdrawn from this state, therefore persisting in
an irregular and scandalous life (Cf. can. 1394, §1); and of clerics guilty of grave
sins against the 6th Commandment (Cf. can. 1395, §§1-2).
Such cases must be instructed by means of a legitimate administrative process,
always ensuring the right of defence.
With regard to the administrative procedure (Cf. canons 35-58, 1342, 1720 CIC), such
cases are to be instructed only by clerics, and it must be ensured that:
1 the accused is notified of the accusations alleged against him and of the relevant
proofs, giving him the opportunity to produce a defence, unless, having been
legitimately cited, he has neglected to make himself available;
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2 a careful examination is carried out, with the help of two assessors (Cf. canons 1424
CIC) of all the proofs and the elements that have been gathered, as well as of the
defence presented by the accused;
3 a Decree is issued, according to the provisions of canons 1344-1350 CIC, if there be
no doubts about the delict having been committed and the criminal action has not
become extinct according to the provisions of canon 1362. The Decree, issued
according to the norm of canons 35-38, must contain the reasons motivating it, and
have expounded therein, even if only in summary fashion, the reasons in law and in
fact pertaining to the particular situation.
7.
Moreover, it must always be shown that a situation exists in which discipline has been
gravely breached by the cleric, and every attempt to resolve the problem through the pastoral
and canonical measures already provided in the Code of Canon Law have not brought about a
positive result, and no end is foreseen to this situation, thus causing grave scandal to the
faithful and damaging the common good of the Church and Her spiritual mission.
In such circumstances, Ordinaries have often requested direct action from the Apostolic
See, or have asked that their decisions be confirmed, in order to deal with these matters with
greater efficacy and authority, sometimes even seeking the imposition of perpetual sanctions,
not excluding dismissal from the clerical state, should the particular circumstances of a case
require it.
Therefore His Holiness has deigned to concede to the Congregation for the Clergy the
Special Faculty to intervene in accord with canon 1399 CIC, either by taking direct action in a
case or by confirming the decisions of Ordinaries, were the competent Ordinary were to so
request, due to the special gravity of the violation of law and the need or urgency to avoid an
objective scandal.
This is granted along with the derogation from the prescriptions of canons 1317, 1319,
1342, §2 and 1349 CIC, with respect to the application of perpetual penalties, to be applied to
deacons only for grave reasons and to priests for the gravest reasons, always requiring that
such cases are presented to the Holy Father for His approval in forma specifica and His
decision.
This provides the special faculty of intervening according to the sense of canon 1399
CIC, either by the Dicastery acting directly itself or by confirming the decisions of Ordinaries,
whenever the competent Ordinary should request this, in order to apply a just penalty or
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penance for an external violation of divine or canon law. In truly exceptional and urgent cases,
when the offender has no intention to amend his ways, sometimes even perpetual penalties
may be imposed.
Such cases must be instructed by means of a legitimate administrative process, always
ensuring the right of defence.
8.
This Congregation has experience of cases of priests and deacons who have abandoned
ministry for a prolonged and continuous time. In these cases, after verifying the circumstances
insofar as possible, the persistence of such an illicit and voluntary absence from ministry is
ascertained, it was decided that the intervention of the Holy See would guarantee order in the
ecclesiastical society and would preserve the faithful from falling into error communis (cf.
canon 144) regarding the validity of the Sacraments.
Therefore His Holiness has deigned to concede to the Congregation for the Clergy the
special faculty to:
handle the cases of clerics, who have abandoned the ministry by personal choice for
a period of more than five consecutive years, and after careful verification of the
facts insofar as this is possible, persist in such voluntary and illicit absence, the
Dicastery, taking this objective situation into account, may declare the dismissal
from the clerical state, with dispensation from the obligations consequent to
ordination, including that of celibacy, for the cleric involved.
Such cases, even those pre-existing the granting of this faculty, must be instructed
according to the following procedure:
Art. 1 The Ordinary of Incardination may request a Rescript of the Apostolic See by which
dismissal from the clerical state is declared, along with the related dispensations from
the obligations consequent to ordination, including that of celibacy, for a cleric who
has abandoned ministry for a period of longer than five consecutive years, and who
after careful verification of the facts, insofar as possible, persists in the voluntary and
illicit absence from ministry.
Art. 2 §1 The competent Ordinary is that of the incardination of the cleric.
§2 The competent Ordinary can entrust the instruction of such procedures either in a
stable manner, or on a cases by case basis, to a suitable priest from his own or another
Diocese.
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§3 In this procedure the Promoter of Justice, who has a duty to protect the public good,
must always be involved.
Art. 3 The declaration mentioned in Art. 1 can be obtained only after the competent Ordinary,
having completed the relevant investigation, has reached moral certainty regarding the
irreversible abandonment from ministry on the part of the cleric, from either the
declaration of the cleric himself, and/or from the depositions of witnesses, from wellfounded public knowledge or other indications.
Art. 4 The notification of any of the acts must be made through the postal service or by other
secure means.
Art. 5 The instructor, having completed the instruction, should transmit all of the acts to the
competent Ordinary with his appropriate summary, expounding his votum according to
the objective facts of the situation.
Art. 6 The competent Ordinary should transmit to the Apostolic See all of the acts together
with his own votum and the observations of the Promoter of Justice.
Art. 7 If, in the judgement of the Apostolic See, supplementary instruction is required, that
will be indicated to the competent Ordinary, with directions as to how to complete the
"Acts."
Art. 8: The Rescript of dismissal from the clerical state, with the related dispensation from the
obligations attendant upon Holy Orders, including that of celibacy, is transmitted from
the Holy See to the competent Ordinary, who will provide for making it known in an
appropriate fashion.
9.
After the dismissal from the clerical state, in exceptional cases, a cleric who might wish
to seek rehabilitation, must present that request to the Apostolic See through a benevolent
Bishop.
The sincere desire of this Congregation is that each Ordinary may, in a truly paternal
fashion and in a spirit of pastoral charity, undertake to ensure that his most valued
collaborators know how to live ecclesiastical discipline as "discipleship", with profound
interior motivations, remembering that the daily exertion of "doing" is of little value if there is
not the "being in Christ" as an authentic disciple.
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Cláudio Cardinal Hummes
Prefect
+Mauro Piacenza
Titular Archbishop of Vittoriana
Secretary
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Vatican City, 17th March 2010
Prot. N. 2010 0823
To the Eminent, Most Excellent and Reverend Ordinaries
At Their Sees
Subsequent to the Circular Letter (Prot. N. 20090556) of the 18th April 2009
regarding the Special Faculties granted to this Dicastery by the Supreme Pontiff on the 30th
January 2009, I have the pleasure to enclose the procedural guidelines which are to be
employed in the instruction of these petitions at the local level. A list indicating the
documents which must, without fail, accompany the materials, is also included for your
assistance.
Before any request for the application of the Special Faculties can be entertained
from an Ordinary (Superiors of Institutes of Consecrated Life and of Societies of Apostolic
Life, who are not Ordinaries according to the meaning of can. 134, §1 CIC, must refer to the
competent Local Ordinary) at the level of the Dicastery, and therefore previous to the
application of these procedural guidelines, it is essential to note the indispensable initial
requirement, namely that the impossibility or the extreme difficulty in following the ordinary
canonical means already available, be that the via gratiosa (Dispensation) or the penal
judicial route, has been clearly established beforehand. Once this has been ascertained and
documented, then the instruction of the case at the local level should necessarily result in:
I–
the proven objective or subjective impossibility that the cleric in question will request
dispensation from the obligations of the clerical state, (i.e. the cleric refuses to apply
for a dispensation or, because of the particular circumstances of the cleric's life, a
dispensation may not be sought);
II –
a well documented summary indicating the results of the pastoral efforts expended
and the canonical measures applied by the Ordinary in attempting to have the
offender desist from his disobedience and return to his priestly obligations;
III – a detailed explanation of the grave difficulties existing in the diocese which prevent
the holding of a canonical penal trial (Can. 1342, §2; 1425, §1, 2°, CIC).
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It must always be remembered by the Most Reverend Ordinaries that the application
of the Special Faculties is not automatic, but will occur only under special circumstances
and in well documented situations, always at the prudent judgement of the Holy See. In
other words, the local phase of the procedure will conclude with the request of the Ordinary
to apply the Special Faculties to the case in question. The approval of this request is subject
solely to the discretion of the Holy See.
In the spirit of pastoral collaboration and unity, keeping in mind the dignity of the
Priesthood, the true good of priests and that of the entire Church, allow me to avail of the
circumstances to renew my sentiments of profound esteem, and with every best wish, I
remain
Yours Sincerely in Christ
Cláudio Cardinal Hummes
Prefect
+ Mauro Piacenza
Titular Archbishop of Vittoriana
Secretary
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Enclosure 1: THE APPLICATION OF SPECIAL FACULTIES I AND II
SPECIAL FACULTY I:
The Special Faculty to treat and present to the Holy Father, for His approval in forma specifica
and His decision, cases of dismissal from the clerical state in poenam with dispensation from
the obligations consequent to ordination, including that of celibacy, of clerics who have
attempted marriage, even if only civilly, and who, having been admonished, have not
withdrawn from this state, therefore persisting in an irregular and scandalous life (Cf. can.
1394, §1); and of clerics guilty of grave sins against the 6th Commandment (Cf. can. 1395,
§§1-2).
SPECIAL FACULTY II:
The Special Faculty to intervene in accord with c. 1399 CIC, either by taking direct action in a
case or by confirming the decisions of Ordinaries, were the competent Ordinary so to request,
due to the special gravity of the violation of law and the need or urgency to avoid an objective
scandal.
This is granted along with the derogation from the prescriptions of canons 1317, 1319, 1342,
§2 and 1349 CIC, with respect to the application of perpetual penalties, to be applied to
deacons only for grave reasons and to priests for the gravest reasons, always requiring that
such cases are presented to the Holy Father for His approval in forma specifica and for His
decision.
PROCEDURES REQUIRED BY CAN. 1720 CIC
After the "Previous Investigation" of canons 1717-1719 then the administrative procedure in
question may begin (Cf. cc. 35-38, 1342, 1720 CIC), which in this instance can only be carried
out by a priest (Cf. Can. 483, §2 CIC). The procedure followed must ensure:
1.
that the accused is notified of the accusations brought against him and the proofs
presented. He must be afforded the opportunity to defend himself, unless, having been
legitimately notified, he has chosen to absent himself from the proceedings. The cleric in
question must also be informed of his right to appoint canonical counsel of his choosing;
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2.
that all the proofs and other elements collected as well as the defence of the accused, be
carefully examined with the assistance of two assessors (Cf. cc. 1424 and 1720, 2° CIC),
3.
that the Petition be issued in accord with the provisions of cc. 1342 – 1350 CIC, if no
doubts remain concerning the delict committed, and that the criminal action is not
extinguished by prescription, in the sense of cc. 1313 and 1362 – 1363 CIC. This Decree,
issued according to the norms of cc. 35 – 58, must be a demonstrably justified decision,
stating, even if only in a summary fashion, the reasons in law and in fact upon which the
Petition is based.
4.
the competent Ordinary will forward to the Holy See all of the acts along with his
votum and the Petition mentioned in n.3° above;
5.
if, in the opinion of the Holy See, a supplementary instruction is required, this will be
communicated to the competent Ordinary and the materials necessary for the completion of the
instruction will be indicated,
6.
the Decree of dismissal from the clerical state, along with the dispensation from the
obligations arising from sacred Ordination, including celibacy, will be sent to the competent
Ordinary, who will provide for its notification to the party concerned.
DOCUMENTS REQUIRED FOR THE INSTRUCTION OF A PROCEDURE FOR
THE FIRST AND SECOND SPECIAL FACULTIES
1.
The cleric's curriculum vitae and an attestation as to his Ordination.
2.
Copy of the Scrutinies prior to sacred Ordination and other documentation relevant to
the formation of the candidate and, if applicable, a copy of his civil marriage document.
3.
Documentation illustrating the impossibility or the extreme difficulty of applying the
ordinary means, either of the nature of a Dispensation or a penalty, the previous application of
the provisions foreseen by the Code (Cf. cc. 1339; 1340; 1347, §1; 1331 – 1333, CIC) and the
pastoral attempts made by the Ordinary to have the cleric desist from his contumacy.
4.
Decree of the Ordinary opening the procedure ex can. 1720, CIC, containing the
following elements: reference to either the lack of necessity for or the conclusion of the
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investigatio praevia (Cf. cc. 1717 – 1719, CIC); the precise formulation of the charges brought
against the cleric; the appointment of two Assessors ex can. 1720, 2°, CIC; the appointment of
an Instructor; the appointment of a Notary.
5.
6.
Procedural Documents:
a)
the interrogatory of the cleric (cf. c. 1728, §2 CIC);
b)
(accompanied by or replaced by) a properly authenticated statement of the
cleric himself demonstrating his awareness of the controversy and the proofs
brought against him, as well as his stated intention to persist in his illicit
conduct, and (if applicable) that he has no intention of seeking dispensation
from the obligations arising from sacred Ordination, including celibacy (cf. c.
1728, §2 CIC);
c)
where it is not possible to obtain the documents required in a) or b), a
document must be provided showing that the whereabouts of the cleric are
unknown and the details of the attempts made to trace him, or indicating that
he has refused the citation to appear or to make the statement required by b)
above (Cf. cc. 1509 – 1511, CIC);
d)
the interrogatory and declarations of witnesses, of the accusers or of the
offended parties, as well as copies of the act whereby they were cited to appear
and of the means whereby this was notified to them.
e)
any other pertinent documents or statements from experts.
Act of Conclusion of the Instruction.
7.
The personal votum of the Instructor outlining the course of the instruction process and
the document indicating transfer of all the acts of the procedure to the competent Ordinary.
8.
Decree of the Ordinary convoking the session for the consideration of the proofs (Cf. c.
1720, 2°, CIC), along with the citation of the Assessors to same.
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9.
Minutes of the Meeting for the consideration of the proofs, signed by the Ordinary and
the two Assessors, which must detail the discussion and evaluation of each single charge and
indicate the individual opinion of each Assessor regarding the issues involved.
10.
The personal votum of the Ordinary, responsible for the instruction of the case, in
which he details the course of events during the session for the consideration of the proofs.
This votum would also include the fattispecie and the arguments in law and in fact pertaining
to each individual charge.
11.
The Petitio of the Ordinary of Incardination of the cleric requesting the Holy See to
accept the case in hand as coming under the provisions of either Special Faculty I or II,
depending on its specificity. The Ordinary then forwards the acts to the Congregation for the
Clergy.
Nota Bene: The acts must be authenticated by the Notary, ordered and bound, numbered,
paginated and indexed; three copies are to be sent to the Congregation for the Clergy, and
these should not contain illegible hand written documents. In such cases, these documents
must be typewritten. Photocopies must be legible or reproduced in typewritten form.
Enclosure 2: THE APPLICATION OF SPECIAL FACULTY III
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SPECIAL FACULTY III
The Special Faculty to handle cases of clerics, who having freely abandoned the ministry for a
period of more than five consecutive years and who, after careful verification of the facts,
insofar as this is possible, persist in such freely chosen and illicit absence from the ministry,
taking this situation into account, to declare then their dismissal from the clerical state, with
dispensation from the obligations consequent to ordination, including that of celibacy.
PROCEDURAL NORMS
Art. 1 The Ordinary of Incardination may request a Rescript of the Holy See whereby
dismissal from the clerical state is declared, along with the related dispensations from
the obligations consequent to ordination, including that of celibacy, for a cleric who
has abandoned ministry for a period of longer than five consecutive years, and who
after careful verification of the facts, insofar as this is possible, persists in the voluntary
and illicit absence from ministry.
Art. 2 §1 The competent Ordinary is that of the incardination of the cleric.
§2 The competent Ordinary can entrust the instruction of such procedures either in
a stable manner, or on a cases by case basis, to a suitable priest from his own or
another Diocese.
§3 In this procedure the Promoter of Justice, who has a duty to protect the public
good, must always be involved in the process.
Art. 3 The declaration mentioned in Art. 1 can be obtained only after the competent Ordinary,
having completed the relevant investigation, has reached moral certainty regarding the
irreversible abandonment from ministry on the part of the cleric, from either the
declaration of the cleric himself, and/or from the depositions of witnesses, from well
founded public knowledge or other indications.
Art. 4 The notification of any of the acts must be made through the postal service or by other
Art. 5 The instructor, having completed the instruction, should transmit all of the acts to the
competent Ordinary with his appropriate summary, expressing his votum according to
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the objective facts of the situation.
Art. 6 The competent Ordinary should forward to the Holy See all of the acts together with
his own votum and the observations of the Promoter of Justice.
Art. 7 If, in the judgement of the Holy See, supplementary instruction is required, this will be
indicated to the competent Ordinary, with directions as to how to complete the "Acts."
Art. 8 The Rescript of dismissal from the clerical state, with the related dispensation from the
obligations arising from Holy Orders, including that of celibacy, is forwarded from the
Holy See to the competent Ordinary, who will provide for its notification and
publication.
DOCUMENTS REQUIRED FOR THE INSTRUCTION OF THE THIRD SPECIAL
FACULTY
1.
The cleric's curriculum vitae and attestation as to his Ordination.
2.
Copy of the Scrutinies prior to sacred Ordination and other documentation relevant to
the formation of the candidate as well as a copy of the civil marriage document, if applicable.
3.
Documentation illustrating the impossibility or the extreme difficulty of applying the
ordinary means, either of the nature of a Dispensation or a penalty, the previous application of
the provisions foreseen by the Code (Cf. cc. 1339; 1340; 1347, §1; 1331 – 1333, CIC) and the
pastoral attempts made by the Ordinary to have the cleric desist from his voluntary and illicit
absence from ministry.
4.
Decree of the Ordinary appointing the Instructor and the Notary (Cf. art. 2, §2).
5.
Decree of Appointment of the Promoter of Justice, or the act citing the stably appointed
Promoter of Justice of the Ordinary's Tribunal to act in the proceedings (Cf. cc. 1430 and
1436, §2, CIC; art 2, §3).
6.
Procedural Documents (Cf. art. 3):
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a)
the interrogatory of the cleric (Cf. art. 3);
b)
(accompanied by or replaced by) a properly authenticated statement of the
cleric himself demonstrating his awareness of the object of the controversy and
the proofs brought against him, along with his stated intention to persist in his
illicit and voluntary absence from ministry, which has already surpassed five
years, and (if applicable) that he has no intention of seeking dispensation from
the obligations arising from sacred Ordination, including celibacy (cfr. Art.3);
c)
where it is not possible to obtain the documents required in a) or b), a
document must be provided showing that the whereabouts of the cleric are
unknown and detail of the attempts made to trace him, or indicating that he has
refused the citation to appear or to make the statement required by b) above
(Cf. cc. 1509 – 1511, CIC; art. 3);
d)
the interrogatory or the depositions of witnesses, as well as copies of the act
whereby they were cited to appear and of the means whereby this was notified
to them.
e)
any other pertinent documents or statements from experts.
7.
Documents which illustrate that the notification of any procedural acts has been
executed by means of the postal service or some other secure means (Cf. art. 4).
8.
Act of Conclusion of the Instruction.
9.
The personal votum of the Instructor outlining the course of the instruction process (art.
5) and the document indicating transfer of all the acts of the procedure to the competent
Ordinary.
10.
The votum of the Promoter of Justice (Cf. art. 6).
11.
The personal votum of the Ordinary, (cf.art.6) responsible for the instruction of the case
indicating his evaluation of the proofs presented. This votum would also include the
fattispecie and the arguments in law and in fact pertaining to each individual charge.
12.
The Petitio of the Ordinary requesting the Holy See to accept the case in hand for
consideration under the Third Special Faculty (cfr. Art.1). At this point, the Ordinary should
provide for the forwarding of the acts to the Congregation for the Clergy (cfr. Art.6).
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Nota Bene:
A) The cleric in question must be informed of his right to nominate an advocate of his
choosing and all those who take part in the process must be priests.
B) The acts must be authenticated by the Notary, ordered and bound, numbered, paginated
and indexed; three copies are to be sent to the Congregation for the Clergy, and these should
not contain illegible hand written documents. In such cases, these documents must be
typewritten. Photocopies must be legible or reproduced in typewritten form.
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