Decree of May 23, 1988 (new proposition of the case)

[English version: Monitor Ecclesiasticus CXV (1990-III), 345-348]

     (X, the petitioner in the case, after more than 10 years in religious life was dispensed from her vows and married Y, several years her senior. They had four children, but after 13 years the marriage broke up when she became involved with another man. She filed a petition for nullity on the grounds of lack of due discretion on her part. Affirmative judgments were given in May 1986 and again, at the appellate level, in December 1986. The respondent appealed to the Rota, asking for a new presentation of the case)

The legal evaluation of the case.

     1 — "If two concordant sentences have been pronounced in a case concerning the status of persons, it can be appealed at any time to an appellate tribunal if new and serious proofs or arguments are brought forward within the peremptory time period of thirty days from the proposed challenge. However, within a month from the presentation of the new proofs and arguments, the appellate tribunal must settle by decree whether a new presentation of the case must be admitted or not" (c. 1644 § 1).

     "An appeal to a higher tribunal to obtain a new presentation of the case docs not suspend the execution of the sentence, unless either the law provides otherwise or the appellate tribunal orders its suspension, in accord with the norm of can. 1650, §3" (c. 1644 §2).

     The serious arguments which justify the admission of a new proposition of a case include not only fresh evidence which may be produced by the parties, "but also breaches of the law committed (in good or in bad faith) by the Courts which have so far heard the case, to the detriment of truth and justice. These breaches can affect either the substance of the matter (where the judges gave credit to what is false, rejected what is true, admitted what is inept or inappropriate), or simple procedure, or both together. Nor docs jurisprudence require that these arguments be compelling in the sense that they are so evidently grave as to make a reversal of the sentence morally certain. It is enough, on the contrary, that there should be probable grounds to the complaints levelled against the sentence; in other words, that there is a reasonable motive for suspecting that justice has not been correctly administered' S.R.R. Decis. 45 (1953), p. 340). (coram Mattioli, May 13, 1953,   2 — In this case, despite an appearance of concern for procedural norms, several serious violations of justice are evident. We refer simply to the more notable ones:

a) The fulfillment of the role of the Defender of the Bond. It is not necessary to enter into the merit of the case in order to realize that the only defense of the marriage bond was undertaken by the respondent himself. The Defenders of the Bond, in both instances, seem to us to have abandoned their specific mission. The law lays it down very clearly that "the defender of the bond is bound by office to propose and clarify everything which can be reasonably adduced against nullity..." (c. 1432). The presiding Judge of the Appeal Court is in error when he writes to the respondent describing the Defender's mission thus:

     "The Defender of the Bond is obliged to argue in defense of the rights of either the petitioner or the respondent" (Acts, vol. II, 8).

     In neither instance did the Defender of the Bond advance a single argument for the validity of the marriage. Remarkably, they did not even mention c. 1060 ("Marriage enjoys the favor of the law..." . They rather advanced arguments exclusively in favor of nullity; this evidently amounts to a perversion of the particular mission entrusted to them.

     The Pope's address this year to the Auditors of the Rota dealt with the office of the Defender of the Bond. Among other things, John Paul II said: "When his part in the process docs not go beyond the presentation of merely stereotyped observations, there would be good grounds to attribute to him either an unacceptable ignorance or else a grave negligence which must burden his conscience. The responsibility he incurs would be toward the whole process of administering justice, since his behavior would weaken the effective seeking out of the truth..." (A.A.S. vol. 80, 1185).

     Moreover, inasmuch as regards the Defender of the Bond of the first instance, it is not clear that the norm laid down by c. 1436 was fully observed.

b) The fulfillment of the role of the Advocate for the respondent

     The respondent, on June 13, 1985, accepted as his representative the Advocate recommended to him by the Judge. On June 21, however, the Judge nominated the same advocate to be Auditor or judge instructor of the case. Such a combination of roles evidently works to the detriment of justice.

     "The only task of the auditor is to collect the proofs according to the mandate of the judge and to present them to the judge; unless the mandate of the judge states otherwise, the auditor can in the meantime decide which proofs are to be collected and how they arc to be collected if such a question perhaps arises while the auditor is exercising his or her function" (c. 1428, § 3).

     As is clear from this canon, an Auditor participates in the task of the Judge; an Advocate on the contrary acts for one of the parties to the case. But, no one is regarded as a good judge in his own case... Besides, the advocate is bound to adduce all the reasonable arguments which can be brought forward in favor of the person he or she represents. In this case, however, the Advocate not only did not do this, but she presented the Court with a 23 page brief which exclusively set forth arguments in favor of the. petitioner's case ("I will prove that was emotionally and psychologically unstable and therefore unable to give reasoned consent to marriage": I, p. 413; "... Therefore, I ask the judge in this case to declare the marriage... null and void": I, 416). One cannot therefore be over- surprised at the lapse of the Presiding Judge of the Appeal Court when he describes her as "the Advocate for the petitioner" (II, 6)! Lest it be said that perhaps the Advocate herself found no arguments for the party she represented, one should note that the respondent himself had already provided her with written arguments which, inasmuch as they were based on Theology and canonical jurisprudence, were not to be dismissed lightly and which the Advocate in the fulfillment of her duty should at least have drawn up in a legal way and presented to the Tribunal.

c) The exclusion of the evidence of several witnesses from the Acts The Judge of First Instance excluded several depositions from the Acts (I. 425; cf. U. 129), including, among others, three brothers of the petitioner and her sister-in-law, as well as four nuns who had lived with the petitioner in the same religious house for almost twelve years. It is extremely hard to assume that these depositions could have had nothing to contribute to an assessment of the maturity or discretion of the petitioner. Nine further depositions were also excluded from the Acts. When the respondent complained of this "unjudicial selectiveness", the Presiding Judge of the Appeal Tribunal (II, 9) wrongly endeavored to persuade him mat this had been done in accordance with canon 1553. This canon states that "it is the judge's responsibility to curb an excessive number of witnesses"; but, as is evident, the canon authorizes the judge to put a reasonable limit on the number of witnesses the parties wish to call; it in no way empowers him to arbitrarily select among depositions already made, which is what appears to have occurred in the case. All of which surely pertains to the most elementary juridical sense.

d) Further examination of these witnesses in second instance A sense of justice towards the respondent (if his complaints in this matter had been taken into account) should have led the Judges of second instance to have had these witnesses examined again and in greater depth; and not merely to ask them to testify just to the credibility of the parties. In any event, it must be said that their new testimonies, however brief, contain declarations about the maturity of the petitioner which would seem to have considerable weight (cfr. AB, II 60; CD, II 71; and particularly Archbishop EF, II 66). It is quite inexplicable that the Sentence of second instance makes not the least reference to the difficulties that these declarations pose for the petitioner's case.

e) Experts

     Canons 1574-1581 should in our opinion have been more faithfully observed. The experts who intervened in the case seem neither to have inspected the Acts nor examined the parties. The report (peritia) of the expert in the first instance (I, 278- 279) seems not only inadequate but quite irrelevant, since it relates to the present psychological state of the petitioner, and not to her state at the moment of giving matrimonial consent.

     In view of the nature of the case, an official Court expert should have already been nominated in the first instance. The second instance expert gave his opinion orally and not in writing(cf. c. 1578 §1), and in reply to what were undeniably leading questions (c. 1564); moreover his report is unsigned and lacks the required exposition of arguments or reasons on which his conclusions are mainly based (c. 1578 § 2).

     3 — From due consideration of the legal and factual aspects of the case, there certainly arises a grave suspicion that justice has not been rightly administered. Therefore, the undersigned Auditors, in reply to the incidental questions put to them, decree:

     a — a new presentation of the case is admitted;

     b — the execution of the sentence of second instance is hereby suspended;

     c — the Acts of both instances, in their entirety, are to be sent to (his Tribunal of the Holy See.

     Given in the Tribunal of the Roman Rota, May 23, 1988.

     Cormac BURKE, Ponens

     Thomas G. DORAN

     Kenneth E. BOCCAFOLA