Decree of Dec. 13, 1989 (nullity of sentence)

[English version: Studia canonica, 25 (1991), pp 193-196]

I. The Facts

1. The parties met in 1957 when the petitioner was doing military service abroad. On his return home, they kept corresponding until the start of 1967 when sshe came at his invitation to allend his sister's wedding. They then began to speak of getting married, which actually occurred at the end of that same year. Their conjugal life was unhappy from the start, and broke up after two years when the respondent rciurned to her country. He visited her there on several occasions in the hope of persuading her to come back. In 1972 they were civilly divorced. In 1987 the petitioner asked the Tribunal of X, in his own country, for a declaration of nullity, the grounds being lack of due discretion of judgement both on his part and on that of his wife. The great distance between the two countries did not help the progress of the case which, as we will sec later, presents many procedural defects. On July 14, 19H9, the Diocese of X, in a one-judge affirmative decision, declared the marriage null on ihc grounds of lack of discretion on the petitioner's part alone. The respondent having appealed to the Roman Rota, the case was sent to this Apostolic Tribunal on September 21 1989. The defender of the bond, with (the concurrence of the promoter of justice, immediately lodged a complaint of nullity against (the sentence. Gratuitous legal assistance having been requested and granted to both parties, and the briefs presented having been examined, this incidental question must now be resolved.

II.The Law

2. Partiality in an ecclesiastical tribunal or judge tends to bring the law into disrepute and to spread among people that the legal system of the "institutional" Church is not geared to the defence of personal rights.

3. While parties to a case not infrequently complain about procedures or decisions, and while these complaints are oflen due to simple unreadiness or inability to accept a just sentence, it is nevertheless the responsibility of the judge, through the impartialily of his hearing and the scrupulous observance of all the provisions of the law, to ensure that no real injustice or violation of personal rights ever lies at the basis of such complaints. The sentence of a court which has not adequately respected either party's right of defence is irremediably null: "A sentence is vitiated by irremediable nullity if: [...] the right of defence was denied to one or other party" (c. 1620, 7° ).

4. The purpose of the "instruction" of a case is really to instruct or inform the judge's mind, so that with all the facts before him he can decide where the truth lies. Without the fullest instruction of the case, i.e., without all the pertinent and available evidence having been gathered from both sides, the judge cannot feel morally entitled to give an honest judgement. He must listen equally to both parties and ensure that, as the law indicates for the several stages of the trial, each can fully know the arguments presenlcd in favour of the other and so be in a position to rebut them, if able. Therefore c. 1598, § I, clearly states: "After the proofs have been collected the judge by a decree must, under pain of nullity, permit the parties and their advocates to inspect at the tribunal chancery the acts which arc not yet known to them." Only if this is done, so allowing the parties the opportunity of completing their proofs (c. 1598, §2), can the case be regarded as adequately instructed and the judge decree the conclusion of the cause (c. 1599).

5. Canon 1601 lays down: "After the conclusion of the case, the judge is to determine an appropriate period of time for the presentation of defence briefs or observations"; and these briefs, according to c. 1602, are normally to be in writing. It is logical that the law prefers a written discussion of the cause at this stage, since this calls for greater depth and thoroughness in the work of the advocates (as well as that of the defender of the bond), which will in turn provide the Tribunal with a better basis for a sound judgement. Canon 1602, § 1, indicates that the judge - with the consent of the parties - can allow the presentation of written briefs to be replaced by an (oral) discussion before the court. Since clear rights are involved here - the right both to the presentation of a written defence and to the study of the written brief of the other party - it is clear, in the light of c. 1485, that an advocate, without a special mandate, cannot validly renounce these rights.

6.         Especially in modern conditions, it may happen that one or both parties live at a great distance from the Tribunal hearing the case. This could be an obstacle to the due administration of justice. To obviate the difficulties, canon law avails itself of the universality of the Church's legal system and legislates for mutual cooperation and help between tribunals. Soc. 1418 indicates: "Every tribunal has the right to call upon the assistance of another tribunal to instruct a case or to communicate acts."

7. Confidentiality is an important value; nevertheless, it can only be legitimately invoked by a judge - as a reason for not permitting access by one or both parties to evidence given by a particular witness - when there is objective risk that, were access permitted, the witness in question might be subjected to serious harm. Witnesses should not be easily allowed, and much less encouraged, to invoke confidentiality. To leave one party without adequate knowledge of some evidence adduced against him or her is to deprive that person of the possibility of rebutting it. This can gravely prejudice a person's basic right of defence. Judges should also bear in mind that the invoking of confidentiality, when not absolutely justified, lends to confer an unwelcome air of clandestinity on the process of justice.

III. The Argument

8. It is evident that the Court of X, despite the respondent's specific and repeated requests to see the Acts (Acts 4; 174), failed to use all the means provided by the law to enable her to exercise this right of hers, and moreover misinformed her about the full provisions of the law.

            From the very beginning of the case, in her letter of November 24, 1987, accepting an advocate assigned by the Tribunal of X, the respondent, having stated that she was not willing to have the same procurator represent her and the petitioner, specifically added, "I would request my advocate to send me or to send to the Archdiocese of M (in her home country) a copy of the Acts"(4).

            In a letter of May 3, 1989, Rev. F., her advocate assigned by the Court, informed her that the instruction had been completed, and added that "you now have the right to inspect certain acts of the case as permitted by the presiding judge. If you choose to avail yourself of this right, the law requires that you appear in person for this inspection" (168). On May 15, 1989, she replied that her financial means did not permit such a long journey, complained of irregular procedures, and asked for a copy of the judgement when rendered to be sent urgently (173). He (and not the judge or officialis) replies on May 25 1989: "Canon 1598 expressly states that the parties, if they wish to inspect the acts, must do so in the office of the Tribunal hearing the case. Therefore, having consulted the judge, I must inform you that the Court is unable to send these acts to you or to the Diocese of N" (to which she had now moved) (175).

9.         The Court's omission or refusal to make it possible for the respondent to inspect the acts through the Dioceses of M or N (c. 1418) directly violated her right of defence and, therefore, in accord with c. 1620, 7° , entails the nullity of the sentence.

10.       Apart from this, a series of facts should be noted. None of them, on its own, might imply an absolute denial of the right of defence but, when taken together, they show at the very least a cavalier attitude on the Tribunal's part towards the respondent's rights.

            a) Neither the Tribunal of X nor the advocate assigned to her shows any real concern to help her know the nature and full extent of her rights and how to exercise them; rather the contrary. If she had been a less determined person, and especially if she had not been informed of her exact rights by her diocese in her home country, she would no doubt have given up. Moreover, to add to her disorientalion, her assigned lawyer appears more as the Court's representative to her, than as her representative before the Court. Apart from two letters, notifying the opening of the case (43) and the actual sentence (189), it is continually through him that the Court communicates with her (59; 62; 68; 70; 71; 168; 175).

            b) It is only in January 1989 (more than a year after her request that the acts be sent to her diocese) that the Court tells her (through her advocate) that she will be able to inspect them in due time, but at X (63). The same disregard for proper procedure was earlier shown by the X Diocese sending a questionnaire directly to her, and not through the Diocese of M (60). It is noteworthy that the latter diocese expressed to the Tribunal of X their surprise at this procedure (57; cf. 60). For the next rogatorial commission, the X Tribunal acted properly (62). One also notes that, given the distances involved, X several times sets unreasonable deadlines for her to reply to letters (43; 59; 168; cf. 173; also letter of July 24, 1989).

            c) There are many signs that the advocate chosen for her by the Court did not do his job. There is no record of any effort on his part to rebut whatever arguments for nullity might have emerged from the acts. He did not ask for a supplementary instruction to get her to clarify certain points. He does not mention to her, or apparently argue with the Court, that, according to c. 1418, she should be enabled to inspect the acts through a diocese in her home country.

            d) A lack of responsible concern for the interests of the respondent is shown in the Advocate's apparently having renounced - without mandate - the right to the presentation of a written defence, and equally to the study of a written brief from the advocate for the petitioner. Even if the advocates simply argued orally before the judge (as we are told they did: 178), there is no record that the advocate for the respondent requested the presence and services of a notary to take a record of the substance of their discussion, or that the judge indicated that this should be done (c. 1605). Given the respondent's insistence on being fully informed, due respect for her rights would have called for this.

            e) Her lawyer, in informing her of her rights of appeal against a possible affirmative sentence, seems to suggest that such an appeal must be made to the Appellate Court of the Diocese of Z (in the petitioner's country), and makes no mention of the fact that she can appeal directly to the Rota (69).

            f) The judge indicated that if the acts are inspected, according to c. 1598, the evidence of the petitioner's brother should not be seen by either party. The evidence (given by a psychologist) was undoubtedly of interest for the case; but one can see no element in it that would justify granting it privileged confidentiality.

            g) The defender of the bond would also seem to have performed his job in a most perfunctory manner. On June 2, 1989, the decrees marking the conclusion of the cause was issued. That same day the defender handed in his observations, consisting of one short page, in which he concluded: "I have no objection to an affirmative decision on the grounds as they pertain to the petitioner" (179).

            h) Finally we should point out that the in iure or law section of the sentence consists of a single phrase: "Lack of Due Discretion - I," and nothing more. In other words, in violation of c. 1611,3", it does not set forth the reasons, that is, the motives both in law and in fact on which the dispositive section of the sentence is based".

            11. Having weighed all of this fully, the undersigned auditors, in reply to the incidental question put to them, decree:


            Given al the Tribunal of the Roman Rota, December 13, 1989.

            Cormac Burke, Ponens

            Thomas G. Doran

            Kenneth E. Boccafola