CLC Blog | Canon Law Centre

Sep 16

The “et cetera” time bomb in article 14 §1 of the Ratio procedendi

Prescinding from the larger question as to what extent the present ordinary process for adjudicating marriage nullity cases is in need of reform, there can be little doubt that the new canons introduced by Mitis iudex (set to come into force on 8 December) will invariably lend themselves to abuse in the administration of justice.

In this post, we consider the implications of the subtle yet powerful “et cetera” which appears at the end of Article 14 §1 of the Ratio procedendi (the official explanation which accompanied the new norms). Article 14 §1 sets forth the various types of cases which qualify to be instructed according to the processus brevior or so-called “fast track” nullity process:

Among the circumstances that may allow the handling of the case of nullity of marriage by means of the shorter process according to cann. 1683-1687, includes for example: that lack of faith that can generate simulation of consent or error that touches the will, the brevity of conjugal cohabitation, a procured abortion to prevent procreation, the stubborn act of remaining in an affair at the time of the wedding or in the time following it, the fraudulent hiding of sterility or an incurable disease, or of children born from a previous relationship, or hiding the cause of marriage completely extraneous to married life, or the unexpected pregnancy of the woman, physical violence inflicted to bring about consent, the lack of use of reason proved by medical documents, etc.

Not unlike certain ambiguities and vague expressions which found their way into the official documents of Vatican II, the “etc.” in Article 14 §1 will, I contend, be among the most potentially abused targets of heterodox interpretations found in the new norms. This abuse will be made possible by the vast reservoir of administrative discretion granted to diocesan bishops under the reformed law. While it is true that certain basic requirements must be met in order for a case to be heard according to the processus brevior, it is equally true that these requirements are not very difficult to satisfy under the new norms. The threshold requirements for a case to qualify for being heard according to the shorter process are as follows:

The petition [for nullity] must be proposed by both parties or proposed by one party with the consent of the other party;

The nullity of the marriage must be manifest;

All the facts which demonstrate that the marriage is manifestly null must be readily available.

Monsignor Pio Vito Pinto, Dean of the Apostolic Tribunal of the Roman Rota, recently clarified that the first requirement will be sufficed with “the agreement of the parties (or at least the declared absence from the process of the respondent in the process”. (“Procedural reform pertaining to declarations of marriage nullity,” in L’Osservatore Romano, English Edition, 11 September 2015, n. 37, 4) When one considers these words of Msgr. Pinto in light of the fact that it is quite common (at least in North America) for a respondent to be declared absent from a process simply on the basis of his or her failure to respond to a single letter of citation (typically sent via certified mail) in which the tribunal requests the respondent to indicate whether he or she intends to participate in the process. Thus, the first threshold requirement of the shorter process, namely the consent of the other party, will frequently be satisfied when the respondent fails to respond to the tribunal’s letter of citation. Yet, if the Church is now prepared to interpret the silence of a respondent as evidence of his or her consent to a petition for nullity, it will have effectively turned a blind eye to that centuries old and venerable doctrine of canon law which holds that silence is to be interpreted “in the favor of the one who is silent – not to his detriment, whenever circumstances or conjecture raise doubts as to the precise meaning to be ascribed to that silence.” (A. Reiffenstuel, Tractatus de regulis iuris, Craetz et Summer: Monachii et Ingolstadtii, 1776, p. 117, n. 18.) While such a doctrine is not of divine or natural law, the thought of abandoning a well-established principle of canon law, presumably for the sake of expediency, is unsettling.

Regarding the second requirement that the nullity of the marriage must be “manifest”, I would call the attention of the readership to the disparity which exists among individual bishops in their interpretation of “manifesto” in the context of the discipline of canon 915. The lack of uniformity in applying the Church’s discipline in this regard is well known. Are we to believe that there will be anything close to a consensus among bishops as to what constitutes “manifest” nullity? Even granting that a body of jurisprudence will eventually develop around this and other questions concerning the elements required to instruct a case according to the shorter process, the fact is that many bishops will continue to proceed according to the precedents they themselves have established within their own territories. The final requirement that “all the facts which demonstrate that the marriage is manifestly null must be readily available” will likewise admit of varying interpretations at the local level.

If one accepts that the present crisis in the Church is a crisis of bishops (as this author does), it would be rather naïve to believe that the processus brevior will be something exceptional or rare in contemporary tribunal practice. Indeed, if recent trends in canonical penal procedures provide any indication as to what we can expect to see in the near future (the past two years have witnessed a concerted effort led by the Congregation for the Doctrine of the Faith to move away from judicial trials and establish shorter administrative processes as the norm), it is the opinion of this author that, in similar fashion, the processus brevior will gradually become the new norm in tribunal practice. This shorter process will undoubtedly open the door for abuse in the administration of justice as many roles will be placed in the hands of one and the same person, the bishop. On that score, one’s confidence in the marriage nullity process will necessarily hinge upon one’s confidence in the bishop who pronounces judgment.

In closing, we would do well to ponder the observation of Mörsdorf which highlights the present risk of abandoning a process which for centuries has aimed at (even if many times falling short of) an objective search for truth (i.e. the ordinary judicial process) for the whim and subterfuge of expediency:

The power of the judge is limited to the application of the general legal norm to the particular case, whereas the administrator, although bound by the law, may go beyond mere application of the law and act according to what necessity, expediency and usefulness require for the good of the church. The judicial sentence can be characterized as a verdict of truth (Wahrspruch), the administrative decree as a verdict of power (Machtspruch).The realization of the law is an end in itself for the judiciary, but only a means to an end for the administration. (K. Mörsdorf, Lehrbuch des Kirchenrechts auf Grund des Codex luris Canonici. III. Prozeß – und Strafrecht, Wissenschaftliche Handbibliothek, Paderborn: Ferdinand Schöningh, 1979, 19)

Jan 30

Canon Lawyers and Papal Infallibility in the Middle Ages: Prof. Tierney’s Study Revisited

In a recent article translated and posted at Rorate Caeli, Prof. Roberto de Mattei presents the case of Pope John XXII (1316-1334) as an example of “a pope who fell into heresy and a Church that resisted.” Recognizing de Mattei’s article to be an attempt to dismantle the sedevacantist conclusion, Father Anthony Cekada offered his rebuttal here.

The question of a heretical pope also raises questions related to the doctrine of papal infallibility. From a historical and canonical perspective, these questions are a bit disconcerting as the origins of the doctrine itself as defined by the Council Fathers at Vatican I do not appear to find the level of support one might expect in the writings of the canonists. In this regard, we wish to call attention to an important study authored by Prof. Brian Tierney, Origins of Papal Infallibility 1150-1350: A Study of the Concepts of Infallibility, Sovereignty and Tradition in the Middle Ages (Leiden: E.J. Brill, 1972). Tierney is a Cambridge educated medievalist whose contributions to the contemporary academic literature in the history of canon law are not undeserving of serious scholarly attention. To shake things up a bit, we present here the text of Prof. James Brundage’s review of Tierney’s study which appeared in The Jurist in 1973.

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J. BRUNDAGE, Rev. of Origins of Papal Infallibility 1150-1350: A Study of the Concepts of Infallibility, Sovereignty and Tradition in the Middle Ages by Brian Tierney (Leiden: E.J. Brill, 1972) in The Jurist 69 (1973) 69-73.

This is an important book: its theme is basic to an understanding of the history, theology, and law of the Christian Church. The book is strikingly original, convincingly documented, and trenchantly argued. It deserves to be read, studied, and pondered by any serious canonist, historian, theologian-indeed, by any Christian who cares seriously about the nature of his Church at all.

At the close of his work, Professor Tierney summarizes his three basic arguments in one sentence: “There is no convincing evidence that papal infallibility formed any part of the theological or canonical tradition of the church before the thirteenth century; the doctrine was invented in the first place by a few dissident Franciscans because it suited their convenience to invent it; eventually, but only after much initial reluctance, it was accepted by the papacy because it suited the convenience of the popes to accept it.”

The first and third clauses of this statement are not, to be sure, wholly novel. There was a considerable controversial literature in the years just before and just after 1870, for example, which argued essentially that the notion of papal infallibility was neither particularly ancient nor especially venerable. Within the past century, however, it has not been fashionable among Catholic scholars to write in this vein. It is startling, then, to find a well-known, highly respected, and completely serious Catholic scholar adopting this particular position.

The central clause of the sentence I have quoted is very novel indeed. Tierney’s assertion that papal infallibility was the invention of some late thirteenth-century Franciscan Spirituals is surely the most novel and the most clearly original feature of his book.

Professor Tierney’s first thesis asserts that infallibility was not a part of the theological or canonical tradition of the Church prior to the thirteenth century. In support of this argument, Tierney draws his evidence from the canonistic literature of the classical period, namely from the time of Gratian (ca. 1140) down to the fourteenth century. This is a literature in which Tierney is particularly well-versed, as he has demonstrated in his earlier work. In order to define the scope of papal power in the classical period of the canon law, it is necessary for Tierney to deal first with the theme of tradition: what relation did the canonists of the classical period see between Scripture, tradition, and papal power? Essentially, he finds that they conceived of the pope as having no power to modify scriptural doctrines; the canonists did not treat him as a spokesman for a tradition of revealed truth distinct from the scriptures and the councils. The canonists were primarily concerned with the notion of papal sovereignty as an instrument for reform and disciplinary unity within the Christian Church. Tierney flatly rejects the argumentum ex silentio, which has sometimes been advanced to account for the silence of the canonists on the topic of papal infallibility. This argument maintained that the classical canonists took papal infallibility as a settled matter which they did not need to discuss because it had never been questioned. On the contrary, Tierney finds, the leading canonists of the classical period frequently discussed the notion of the inerrancy of the Church’s faith and invariably concluded that the pope alone could not guarantee that inerrancy. Further, he contends that although the canonists voiced statements which at a hasty reading might be interpreted to imply agreement with a doctrine of infallibility, these statements upon careful analysis turn out to be concerned with something else: the notion of indefectibility. Far from saying that papal powers guaranteed the continuous existence of a Church which was free from error, the canonists were really getting at the notion that at least some part of the Church would always maintain the true faith, whatever doctrinal aberrations the rest of the Church (including even the pope) might fall into. Moreover, Tierney reports that the canonists believed that the decrees of the pope, even in matters of faith, could be changed by succeeding popes. For the canonists this was a crucial issue, since it was central to their notions about papal sovereignty. A pope who is sovereign, they reasoned, cannot be bound by the decisions of his predecessors: par in parem non habet imperium was a concept central to their notion of sovereignty. It is true that in some places the canonists did say that the pope was bound by law, that he could not innovate or abrogate earlier decisions in matters of faith. Such references as these, according to Tierney, always refer to situations where the “matters of faith” in question are contained in the decrees of a general council or in the scriptures. But the classical canonists, as Tierney sees it, clearly did not regard papal pronouncements, even in matters of faith, either as irreformable ex sese or as infallible.

As for the theologians, Tierney maintains that they did not much concern themselves with ecclesiological themes down to about 1250. Thereafter, theologians began to interest themselves increasingly in such matters. Tierney concentrates his investigation of the theologians primarily on the positions adopted by the Franciscan theologians in general and by Saint Bonaventure in particular. On the basis of his soundings in this literature, Tierney concludes that Bonaventure’s thought was entirely compatible with the positions adopted by the canonists: Bonaventure treated the pope as a supreme judge in doctrinal matters; but he did not consider papal judgments either infallible or irreformable.

If the doctrine of infallibility cannot be found in the writings of the canonists or the theologians of the forty-odd Christian generations prior to St. Bonaventure’s time, as Tierney maintains, then where did the doctrine come from, who originated it, and when is all this supposed to have happened? Professor Tierney’s answer is that Peitro Olivi did it, toward the end of the thirteenth century.

Pietro Olivi was a Franciscan theologian who flourished in the decades just following the death of Saint Bonaventure. And Peitro Olivi was also, according to Tierney, the first Christian theologian-indeed, the first Christian writer of any kind-to formulate a doctrine of papal infallibility.

The sequence of events which led to this remarkable development was, as Tierney reconstructs it, uncommonly strange. Pietro Olivi was a Franciscan Spiritual, a fervent advocate of apostolic poverty. In August 1279, Pope Nicholas III promulgated the bull Exiit. In this bull the pope asserted that the Franciscan ideal of poverty was meritorious and holy; it was, in fact, the way of perfection taught by Christ Himself and confirmed by His example. The pope also taught in Exiit that the Rule of St. Francis was directly inspired by the Holy Spirit. This conclusion might be expected to have a certain appeal for devout and convinced Franciscans, such as Olivi. In Exiit the pope explicitly singled out the Franciscan way of life, in the sense that it was understood by the Spiritual wing of the Order, as the path to Christian perfection. Shortly after the publication of Exiit, Pietro Olivi composed a Quaestio in which he quite clearly enunciated a doctrine of papal infallibility. According to Tierney this was a theological novelty; moreover, it was entirely inconsistent with the accepted views of the canonists of Olivi’s period about the nature of papal sovereignty. Olivi felt compelled to construct his novel and unprecedented doctrine of papal infallibility precisely because he lived in fear that the Church would soon come to be ruled by a pseudo-pope. Olivi’s fears on this score were based upon his belief in the Joadimite prophecies which were popular in the thirteenth century. The coming pseudo-pope, Olivi feared, would subvert the very bases of Christian truth; in particular, he would disavow the position established by Exiit, which identified the life of Franciscan poverty with the way of perfection taught by Christ himself. Olivi reasoned, according to Tierney, that the decision of Nicholas III on Franciscan poverty would be binding on future popes only if the papacy were infallible.

If Tierney is right in his reconstruction of Pietro Olivi’s thought and fears, then Olivi’s worst premonitions were quickly fulfilled. Pietro Olivi died in 1298. In 1322 Pope John XXII did in fact revoke the teachings of Nicholas III in the bull Exiit of 1279. John XXII, moreover, bitterly resented and strongly attacked the attempts by the Spiritual Franciscans of his own day to deny him the right to overturn the doctrinal position embraced by Nicholas III. The Spirituals, adopting the lead provided for them by Olivi, argued that Pope John could not undo what Pope Nicholas had done because the pope was infallible. Pope John replied in a blistering bull, Quia Quorundam, in which he stigmatized the idea of papal infallibility as a “pestiferous doctrine” and a “pernicious audacity.” We are thus confronted with a striking paradox: on the one side, the Spirituals insisting as vehemently as they could that the pope was infallible; on the other side, the pope protesting as vigorously as he could that he was not infallible at all.

The reason for this paradoxical-seeming situation, according to Professor Tierney, is that both John XXII and his Franciscan opponents were aware that papal infallibility inevitably limits papal sovereignty quite seriously. The Franciscans wanted to do precisely that in order to preserve their own vested interests; while the pope was determined to keep his options open by insisting on his sovereignty, at the expense of his alleged infallibility.

The ensuing debates were at once labyrinthine in their logic and tedious in their elaboration. Professor Tierney traces the threads of argumentation through the glosses of Zenzelinus de Cassanis, the manifestos of Michael of Cesena, and the ecclesiology of William of Ockham, to the tractates of Guido Terreni. Guido, a fourteenth century Carmelite, in Tierney’s words, “rescued the doctrine of infallibility from the dissident Franciscans who, up to this time, had been its principal exponents and domesticated it for the use of the papal curia.”

On July 18, 1870, the First Vatican Council adopted a dogmatic constitution defining papal infallibility as a divinely revealed doctrine. In so doing, the Council proclaimed that it was “faithfully adhering to a tradition received from the beginning of the Christian faith.”

It would be difficult to reconcile the language of the First Vatican Council’s constitution with the conclusions of Professor Tierney: they cannot both be right. True, one might interpret the passage quoted above from the constitution as a mere obiter dictum. That passage might be construed, perhaps, not as a part of the doctrinal definition itself, but rather as accessory to it. Nonetheless, the notion that the doctrine of infallibility was an ancient one, that it was a part of a continuous Christian tradition, and that its claims to credence were based upon that ancient and continuous tradition-all of these ideas were basic to the thinking of the bishops who accepted the dogmatic constitution of 1870. Professor Tierney has called into question the historical foundations of the belief about infallibility which was held by Vatican Council I.

Professor Tierney makes a compelling case for his view. He examines the evidence with care, his handling of his material is exact, and his use of the testimony is honest. In the face of the evidence which he cites, it is clear that infallibility, at least as the Fathers of Vatican I understood it, was not a doctrine accepted by the canonists of the period from Gratian to Boniface VIII. The canonists could not have accepted that doctrine because they did not know it: it was not a part of the Church’s tradition as they understood it. Indefectibility is something else and indefectibility is a doctrine which the classical canonists both understood and commonly accepted-though not necessarily in the same sense that nineteenth century ultramontane theologians understood and accepted it. On these points Professor Tierney has established a position which will henceforth be extremely difficult to assail.

As for his view that Pietro Olivi was the creator of the doctrine of papal infallibility, Professor Tierney’s position is highly persuasive. It is, of course, possible that somewhere, sometime, some scholar may exhume a manuscript of a still earlier author who held views that were the same as or similar to those of Pietro Olivi. What seems certain is that Professor Tierney has demonstrated that Olivi is the earliest author now known to have written about theory of papal infallibility in a proper sense of the term.

James A. Brundage
Department of History
University of Wisconsin-Milwaukee

Jul 11

Motu Proprio on the Jurisdiction of the Juridical Authorities of Vatican City State in Criminal Matters

APOSTOLIC LETTER

ISSUED MOTU PROPRIO
OF THE SUPREME PONTIFF

FRANCIS

ON THE JURISDICTION OF THE

JUDICIAL AUTHORITIES OF VATICAN CITY STATE

IN CRIMINAL MATTERS

In our times, the common good is increasingly threatened by transnational organized crime, the improper use of the markets and of the economy, as well as by terrorism.

It is therefore necessary for the international community to adopt adequate legal instruments to prevent and counter criminal activities, by promoting international judicial cooperation on criminal matters.

In ratifying numerous international conventions in these areas, and acting also on behalf of Vatican City State, the Holy See has constantly maintained that such agreements are effective means to prevent criminal activities that threaten human dignity, the common good and peace.

With a view to renewing the Apostolic See’s commitment to cooperate to these ends, by means of this Apostolic Letter issued Motu Proprio, I establish that:

1. The competent Judicial Authorities of Vatican City State shall also exercise penal jurisdiction over:

a) crimes committed against the security, the fundamental interests or the patrimony of the Holy See;

b) crimes referred to:

– in Vatican City State Law No. VIII, of 11 July 2013, containing Supplementary Norms on Criminal Law Matters;

– in Vatican City State Law No. IX, of 11 July 2013, containing Amendments to the Criminal Code and the Criminal Procedure Code;

when such crimes are committed by the persons referred to in paragraph 3 below, in the exercise of their functions;

c) any other crime whose prosecution is required by an international agreement ratified by the Holy See, if the perpetrator is physically present in the territory of Vatican City State and has not been extradited.

2. The crimes referred to in paragraph 1 are to be judged pursuant to the criminal law in force in Vatican City State at the time of their commission, without prejudice to the general principles of the legal system on the temporal application of criminal laws.

3. For the purposes of Vatican criminal law, the following persons are deemed “public officials”:

a) members, officials and personnel of the various organs of the Roman Curia and of the Institutions connected to it.

b) papal legates and diplomatic personnel of the Holy See.

c) those persons who serve as representatives, managers or directors, as well as persons who even de facto manage or exercise control over the entities directly dependent on the Holy See and listed in the registry of canonical juridical persons kept by the Governorate of Vatican City State;

d) any other person holding an administrative or judicial mandate in the Holy See, permanent or temporary, paid or unpaid, irrespective of that person’s seniority.

4. The jurisdiction referred to in paragraph 1 comprises also the administrative liability of juridical persons arising from crimes, as regulated by Vatican City State laws.

5. When the same matters are prosecuted in other States, the provisions in force in Vatican City State on concurrent jurisdiction shall apply.

6. The content of article 23 of Law No. CXIX of 21 November 1987, which approves the Judicial Order of Vatican City State remains in force.

This I decide and establish, anything to the contrary notwithstanding.

I establish that this Apostolic Letter issued Motu Proprio will be promulgated by its publication in L’Osservatore Romano, entering into force on 1 September 2013.

Given in Rome, at the Apostolic Palace, on 11 July 2013, the first of my Pontificate.

FRANCISCUS
_________________________________

[Introduction: communiqué of the Holy See Press Office]

1. Today His Holiness Pope Francis has issued a Motu proprio on criminal law matters.

On this same date, the Pontifical Commission for Vatican City State has adopted the following laws:

– Law No. VIII containing Supplementary Norms on Criminal Law Matters;

– Law No. IX containing Amendments to the Criminal Code and the Criminal Procedure Code;

– Law No. X containing General Provisions on Administrative Sanctions.

2. The Motu proprio makes the criminal laws adopted by the Pontifical Commission for Vatican City State applicable also within the Holy See.

3. The criminal laws adopted today are a continuation of the efforts to update Vatican City State’s legal system, building upon the measures adopted since 2010 during the pontificate of Benedict XVI.

4. These laws, however, have a broader scope, since they incorporate into the Vatican legal system the provisions of numerous international conventions including: the four Geneva Conventions of 1949, on the conduct of war and war crimes; the 1965 Convention on the elimination of all forms of racial discrimination; the 1984 Convention against torture and other cruel, inhuman or degrading treatment or punishment, the 1989 Convention on the rights of the child and its optional protocols of 2000.

5. Of particular note in this context is the introduction of the crime of torture and a broader definition of the category of crimes against minors (including: the sale of children, child prostitution, the recruitment of children, sexual violence and sexual acts with children, and the production and possession of child pornography).

6. A section of the legislation introduces a list of crimes against humanity, in particular, the crimes of genocide and apartheid, following broadly the definitions adopted in the 1998 Statute of the International Criminal Court. The section of the Criminal Code regarding offences committed in the exercise of public administration has also been revised in light of the 2003 United Nations Convention against corruption. With regard to penalties, that of life imprisonment has been abolished and it has been replaced with a maximum penalty of 30 to 35 years of imprisonment.

7. In line with the most recent developments at the international level, the new legislation also introduces a system of penalties for juridical persons who profit from the criminal activities of their constituent bodies or personnel, establishing their direct liability and providing as penalties a set of interdictions and pecuniary sanctions.

8. In the area of criminal procedure, the general principles of presumption of innocence and due process within a reasonable time have been recognized explicitly, while the power of the judicial authorities to adopt precautionary measures has been increased by bringing up to date the provisions for confiscation and the freezing of assets.

9. Also of importance is the modernization of the rather dated norms governing international judicial cooperation, with the adoption of measures in line with the standards of the most recent international conventions.

10. The law on administrative sanctions is of a general nature so as to serve as a common framework that provides for the possibility of sanctions in different areas intended to promote respect for the norms, to render them effective and to protect the public interests.

11. As a whole, these normative efforts form part of broader process aimed at modernizing further the Vatican legal system with a view to enhancing its consistency and effectiveness.

_________________________________

[Presentation of the motu proprio by the Secretary for Relations with States Abp. Dominique Mamberti]

The laws approved by the Pontifical Commission for Vatican City State bring about a broad-ranging normative change, necessary for the function that this State, entirely

sui generis, is called upon to carry out for the benefit of the Apostolic See. The original and foundational aim of the Vatican, which consists of guaranteeing the freedom of the exercise of the Petrine ministry, indeed requires an institutional structure that, the limited dimensions of the territory notwithstanding, assumes a complexity in some respects similar to that of contemporary States.

Established by the Lateran Pacts of 1929, the State adopted the judicial, civil and penal structures of the Kingdom of Italy in their entirety, in the conviction that this would be sufficient to regulate the legal relationships within a State whose reason for existence lies in the support of the spiritual mission of Peter’s Successor. The original penal system – constituted by the Italian Penal Code on 30 June 1889 and the Italian Penal Code of 27 February 1913, in force from 7 June 1929 – has seen only marginal modifications and even the new law on sources of law (No. 71 of 1 October 2008) confirms the criminal legislation of 1929, while awaiting an overall redefinition of the discipline.

The most recently approved laws, while not constituting a radical reform of the penal system, revise some aspects and complete it in other areas, satisfying a number of requirements. On the one hand, these laws take up and develop the theme of the evolution of the Vatican judicial structure, continuing the action undertaken by Pope Benedict XVI in 2010 to prevent and combat money-laundering and the financing of terrorism. In this regard, the provisions contained in the 2000 United Nations Convention Against Transnational Organised Crime, the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and the 1999 International Convention for the Suppression of Financing of Terrorism, are to be implemented, along with other conventions defining and specifying terrorist activity.

The new laws also introduce other forms of crime indicated in various international conventions already ratified by the Holy See in international contexts and which will now be implemented in domestic law. Among these conventions, the following are worthy of mention: the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 International Convention on the Rights of the Child and the 2000 Optional Protocols, the 1949 Geneva Conventions on War Crimes, etc. A separate section is dedicated to crimes against humanity, including genocide and other crimes defined by international common law, along the lines of the 1998 Rome Statute of the International Criminal Court. From a substantial point of view, finally, further items of note are the revision of crimes against the public administration, in line with the provisions included in the 2003 United Nations Convention Against Corruption, as well as the abolition of the life sentence, to be substituted by a maximum custodial sentence of 30 to 35 years.

While many of the specific criminal offences included in these laws are undeniably new, it would however be incorrect to assume that the forms of conduct thereby sanctioned were previously licit. These were indeed punished, but as broader, more generic forms of criminal activity. The introduction of the new regulations is useful to define the specific cases with greater certainty and precision and to thus satisfy the international parameters, calibrating the sanctions to the specific gravity of the case.

Some of the new categories of criminal activity introduced (for instance, crimes against the security of air or maritime navigation or against the security of airports or fixed platforms) may appear excessive considering the geographic characteristics of Vatican City State. However, such regulations have on the one hand the function of ensuring respect for international anti-terrorism parameters, and on the other, they are necessary to ensure compatibility with the condition of so-called “dual criminality”, to enable the extradition of persons charged or convicted of crimes committed abroad should they seek refuge in Vatican City State.

Special emphasis is given to the discipline of “civil responsibility of juridical persons derived from a criminal violation” (arts. 46-51 of the law containing complementary regulations on criminal matters), introducing sanctions for juridical persons involved in criminal activities as defined by the current international legal framework. To this end an attempt has been made to reconcile the traditionally cautious approach observable also in the canonical order, according to which “societas puniri non potest” with the need, ever more evident in the international context, to establish adequate and deterrent penalties also against juridical persons who profit from crime. The solution adopted was therefore that of establishing administrative responsibility of juridical persons, obviously when it is possible to demonstrate that a crime was committed in the interests of or to the advantage of that same juridical person.

Significant modifications are introduced also in terms of procedure. These include: updates in the discipline of requisition, strengthened by measures regarding the preventative freezing of assets; an explicit statement of the principles of fair trial within a reasonable time limit and with the presumption of innocence; the reformulation of regulations regarding international judicial cooperation with the adoption of the measures established by the most recent international conventions.

From a technical and regulatory point of view, the plurality of sources available to experts was organised by means of their combination in a harmonious and coherent body of legislation which, in the frameworks of the Church’s magisterium and the juridical-canonical tradition, the principal source of Vatican law (Art. 1, Para. 1, Law No. 71 on the sources of law, 1 October 2008) takes into account simultaneously the norms established by international conventions and the Italian juridical tradition, reference to which has always been made by the Vatican legal order.

In order to better order a legislative work with such broad-ranging content, it has been drafted as two distinct laws. One brings together all the legislation consisting of modifications to the penal code and the code of criminal procedure; the other will instead consist of legislation of a nature which does not permit a homogeneous section within the code structure and is therefore gathered in form of a later or complementary penal code.

Finally, the penal reform hitherto presented is completed with the adoption by the Holy Father Francis of a specific Motu proprio, also bearing yesterday’s date, which extends the reach of the legislation contained in these criminal laws to the members, officials and employees of the various bodies of the Roman Curia, connected Institutions, bodies subordinate to the Holy See and canonical juridical persons, as well as pontifical legates and diplomatic staff of the Holy See. This extension has the aim of making the crimes included in these laws indictable by the judicial organs of Vatican City State even when committed outside the borders of the state.

Among the laws adopted yesterday by the Pontifical Commission for Vatican City State there is also the law consisting of general legislation on the subject of administrative sanctions. This law had already been proposed in Art. 7, Paragraph 4 of Law 71 on the sources of law of 1 October 2008, and establishes the general principles and regulation of the application of administrative sanctions.

For some time there has long been an awareness of the expedience of an intermediate tertium genus between penal and civil offences, also in relation to the growing relevance of administrative offences. As a discipline of principle, the provisions of such a law would be used whenever another law establishes the imposition of administrative penalties for a breach of law, no doubt to specify the procedure for their application to the competent authority and the order of other minor effects.

One of the cornerstones of the system introduced by this law is constituted by the so-called rule of law, as a result of which administrative sanctions may be imposed only in cases defined by law. The procedure for implementation is divided into a phase of investigation and challenge of the infringement by the competent offices, and a second phase of imposition of the sanction, which will fall within the competences of the President of the Governorate. Finally, there will be the right to appeal heard by a single judge except in more cases of more severe penalties, for which the jurisdiction of the Court is established.

To conclude this brief presentation, it may be observed that the laws indicated above are notable not only for their undeniable substantial and systematic relevance, but also because they represent a further significant step on the part of the Vatican legislator towards the refinement of its legal code, necessary to assume and promote the constructive and useful proposals of the international Community with a view to more intense international cooperation and a more effective pursuit of the common good.

Jun 27

Declaration of bishops of Society of St.Pius X on the occasion of the 25th anniversary of the episcopal consecrations

1- On the occasion of the 25th [anniversary of the consecrations of 30] June 1988. Most especially they would like to express their filial gratitude towards their venerable founder who, after so many years spent serving the Church and the Sovereign Pontiff, so as to safeguard the Faith and the Catholic priesthood, did not hesitate to suffer the unjust accusation of disobedience.

2- In his letter addressed to us before the consecrations, he wrote, “I beseech you to remain attached to the See of Peter, to the Roman Church, Mother and Mistress of all churches, in the integral Catholic Faith, as expressed in the Professions of Faith, in the catechism of the Council of Trent, in conformity with that which you have been taught in the seminary. Remain faithful to the transmission of this Faith so that the reign of Our Lord may come.” It is indeed this phrase which expresses the profound reason for the act which he was going to undertake “so that the reign of Our Lord might come,” adveniat regnum tuum!

3- Following Archbishop Lefebvre, we affirm that the cause of the grave errors which are in the process of demolishing the Church does not reside in a bad interpretation of the conciliar texts – a “hermeneutic of rupture” which would be opposed to a “hermeneutic of reform in continuity” – but truly in the texts themselves, by virtue of the unheard of choice made by Vatican II. This choice is manifest in its documents and in its spirit; faced with “secular and profane humanism,” faced with the “religion (as indeed it is) of man who makes himself God,” the Church as unique custodian of Revelation “of God who became man” has wanted to make known its “new humanism” by saying to the modern world, “we too, we more than any other, have the cult of man.” (Paul VI, closing speech, 7th December 1965). But this coexistence of the cult of God and the cult of man is radically opposed to the Catholic Faith which teaches us to render the supreme cult and to give the primacy exclusively to the one true God and to only His Son, Jesus Christ, in whom “dwelleth all the fullness of the Divinity corporeally” (Col. 2:9).

4- We are truly obliged to observe that this Council without comparison, which wanted to be merely pastoral and not dogmatic, inaugurated a new type of magisterium, hitherto unheard of in the Church, without roots in Tradition; a magisterium resolved to reconcile Catholic doctrine with liberal ideas; a magisterium imbued with the modernist ideas of subjectivism, of immanentism and of perpetual evolution according to the false concept of a living tradition, vitiating the nature, the content, the role and the exercise of ecclesiastical magisterium.

5- Henceforth the reign of Christ is no longer the preoccupation of the ecclesiastical authorities, despite the fact that Christ’s words, “all power is given to me on earth and in heaven,” (Mt 28:18) remain an absolute truth and an absolute reality. To deny them in action is tantamount to no longer recognising in practice the divinity of Our Lord. Hence because of the Council, the sovereignty of Christ over human societies is simply ignored, and even combatted, and the Church is imbued with this liberal spirit which manifests itself especially in religious liberty, ecumenism, collegiality and the New Mass.

6- Religious Liberty, as exposed by Dignitatis humanae and its practical application these last fifty years, logically leads to demanding God-made-Man to renounce His reign over man-who-makes-himself-God, which is equivalent to dissolving Christ. In the place of a conduct which is inspired by a solid faith in the real power of Our Lord Jesus Christ, we see the Church being shamefully guided by human prudence and with such self-doubt that she asks nothing other from the State than that which the Masonic Lodges wish to concede to her: the common law in the midst of, and on the same level as, other religions which she no longer dares call false.

7- In the name of a ubiquitous ecumenism (Unitatis redintegratio) and of a vain inter-religious dialogue (Nostra Aetate), the truth about the one true Church is silenced; also, as a large part of the clergy and the faithful no longer see in Our Lord and the Catholic Church the unique way of salvation, they have renounced to convert the adepts of false religions, leaving them rather in ignorance of the unique Truth. This ecumenism has thus literally killed the missionary spirit through seeking a false unity, too often reducing the mission of the Church to that of delivering a message of a purely terrestrial peace and of a humanitarian role of lessening want in the world, placing it thereby in the wake of international organisations.

8- The weakening of faith in Our Lord’s divinity favours a dissolution of the unity of authority in the Church, by introducing a collegial, egalitarian and democratic spirit, (see Lumen Gentium). Christ is no longer the head from which everything flows, in particular the exercise of authority. The Sovereign Pontiff who no longer exercises effectively the fullness of his authority, and the bishops who – contrary to the teaching of Vatican I – esteem that they can collegially and habitually share the fullness of the supreme power, commit themselves thereby, with the priests, to listen to and to follow ‘the people of God,’ the new sovereign. This represents the destruction of authority and in consequence the ruin of Christian institutions: families, seminaries, religious institutes.

9- The New Mass, promulgated in 1969, diminishes the affirmation of the reign of Christ by the Cross (“regnavit a ligno Deus”). Indeed, the rite itself curtails and obscures the sacrificial and propitiatory nature of the Eucharistic Sacrifice. Underpinning this new rite is the new and false theology of the paschal mystery. Both one and the other destroy Catholic spirituality as founded upon the sacrifice of Our Lord on Calvary. This Mass is penetrated with an ecumenical and Protestant spirit, democratic and humanist, which empties out the sacrifice of the Cross. It illustrates the new concept of ‘the common priesthood of the baptised’ which undermines the sacramental priesthood of the priest.

10- Fifty years on, the causes persist and still engender the same effects. Hence today the consecrations retain their full justification. It was love of the Church which guided Archbishop Lefebvre and which guides his sons. It is the same desire to “pass on the Catholic priesthood in all its doctrinal purity and its missionary charity” (Archbishop Lefebvre, Spiritual Journey) which animates the Society of Saint Pius X at the service of the Church, when it asks with insistence for the Roman authorities to regain the treasure of doctrinal, moral and liturgical Tradition.

11- This love of the Church explains the rule that Archbishop Lefebvre always observed: to follow Providence in all circumstances, without ever allowing oneself to anticipate it. We mean to do the same: either when Rome returns to Tradition and to the Faith of all time – which would re-establish order in the Church; or when she explicitly acknowledges our right to profess integrally the Faith and to reject the errors which oppose it, with the right and the duty for us to oppose publicly the errors and the proponents of these errors, whoever they may be – which would allow the beginning of a re-establishing of order. Meanwhile, faced with this crisis which continues its ravages in the Church, we persevere in the defence of Catholic Tradition and our hope remains entire, as we know by the certitude of Faith that “the gates of hell will not prevail against her.” (Mt 16:18)

12- We mean to follow well the injunction of our dear and venerable Father in the episcopacy: “Dear friends, be my consolation in Christ, remain strong in the Faith, faithful to the true sacrifice of the Mass, to the true and holy Priesthood of Our Lord, for the triumph and the glory of Jesus in heaven and on earth” (Letter to the bishops). May the Holy Trinity, by the intercession of the Immaculate Heart of Mary, grant us the grace of fidelity to the episcopacy which we have received and which we want to exercise for the honour of God, the triumph of the Church and the salvation of souls.

Ecône, 27th June 2013, on the feast of Our Lady of Perpetual Succour

Bishop Bernard Fellay

Bishop Bernard Tissier de Mallerais

Bishop Alfonso de Galaretta

Source: SSPX General House

Apr 22

The Notion of Crime in Canon Law

“A crime, in ecclesiastical law, is an external and morally imputable transgression of a law to which is attached a canonical sanction, at least in general. It is the law, either eternal or positive, that governs order, the relation of man to God and of man to man, and any defection from that order constitutes a frustration of the designs of Providence. But the transgression which the ecclesiastical law considers is not merely the guilty mind (mens rea), but the act, an outward manifestation of a vicious intention, or a breach of the law as externally apprehensible. . . A transgression of the law is an act, and the transgressor, therefore, is an agent, and when that agent is intelligent and free, and acts as such, we say that the effects caused by such an agent are to be imputed or credited to him.” (Rev. Charles Augustine, O.S.B., Commentary on the New Code of Canon Law, Vol. VIII, Bk. V)