[English version: Studia canonica, 25 (1991), pp 196-198]
I. The Facts
1. AB and CD married on February 23, 1980. The marriage was unhappy from the start, because of their constant quarrels and, the petitioner says, because of the respondent's violence. In November 1981, the petitioner left the home. On May 3,1984, she asked the Tribunal of M to declare the marriage null alleging two grounds: lack of due discretion of judgement on the part of the man, and his inability to undertake and fulfill the essential duties of marriage. On June 18,1987. an affirmative decision was given on both grounds. The National Appeal Tribunal reversed this decision on March 9, 1988. The petitioner then appealed lo the "Tribunal of third instance," without specifying further. Through her bishop she appealed to have the case tried in third instance before the Court of N (in another country). The Apostolic Signatura having denied this application, the case finally arrived at the Rota on January 23, 1990. After gratuitous legal assistance was granted to both parties, and the defender of the bond and the promotor of justice had written their opinions, the advocate ex officio assigned to the petitioner lodged a complaint of nullity against the second instance decision, on the grounds of a violation of the right of defence of both parties, under c. 1620, 7° . Several documents necessary to complete the acts were asked of the Tribunals and eventually received. After examination of all the acts, the opinion of the defender of the bond and that of the promoter of justice, as well as the briefs presented, this incidental question can now be resolved.
II. The Law
2. "If the sentence in favor of the nullity of marriage was in the first grade of trial, the appellate tribunal by its own decree is to confirm the decision without delay or admit the case to an ordinary examination of a new grade of trial" (c. 1682, §2). "A sentence is vitiated by irremediable nullity if [...) the right of defence was denied to one or other party" (c. 1620,7° ). As is well known. Pope John Paul's 1989 Address to the Rota dealt with this particular topic in some detail (Acta Apostolicae Sedis, 81 (1989), pp. 922-927). "For the pronouncement of any kind of sentence, there must be in the mind of the judge moral certitude regarding the matter to be settled by the sentence. The judge must derive this certitude from the acts and the proofs" (c. 1608, §§ 1-2).
3. In accordance with c. 1682, § 2, when an appeal tribunal is unable to draw moral certainly from the acts, so as to confirm the affirmative sentence given by a lower tribunal, it must send the case to ordinary hearing in second instance. The logic of the process of justice then normally calls for a supplementary instruction in which obscure points can be clarified, doubts dispelled, allegations better seen to be true or false.
4. The hierarchy of tribunals is so established that the consideration of a case at a higher level should lead to a refining and deepening of the process and methods by which justice is to be achieved. The worth and efficacy of a higher tribunal depend not only on the greater theoretical proficiency or practical experience of the judges that compose it, but also on their judicial prudence. This again is not to be reduced to mere skill in weighing the facts, but also includes, and indeed demands, a care and concern to establish them, so that, as far as possible, the judgement given is based on a full grasp of the truth of the matter to be judged.
III. The Argument
5. The case shows evident violation of procedural norms, especially in what concerns the right of defence. The Appeal Court, on December 7,1987, declining to confirm the affirmative sentence of the judges of first instance, admitted the case to an ordinary examination or process in second instance. However, what followed can in no way be regarded as a process, according to canonical norms. The judges omitted certain requisites that are essential for the defence of the rights of the parties; they likewise neglected to take other measures which seemed necessary in the case, so as to be able to arrive at a prudent and "informed" decision.
6. Among the acts recently received at this Apostolic Tribunal, there is a decree in which the terms of the controversy are defined. This decree was drawn up on December 7, 1987, in other words the very same day that the judges sent the case forward to ordinary second examination; and it is signed by the three judges in question. However, the parties to the case were never cited for the joinder of the issue; an omission which leads to the nullity of the act, in accordance with cc, 1507, 1509, 1511, and 1513. There was also a clear failure to observe c. 1516 which lays down: "Once the joinder of issues has occurred, the judge is to furnish the parties suitable time to present and complete proofs."
7. There is no decree of publication of the acts. On February 15, 1988, the advocate for the petitioner was notified to present his brief within fourteen days. The defender of the bond was given a similar notification, on February 19, 1988. The judges however gave their sentence just one week after this notification. Not a single word written by the defender of the bond is to be found in the acts.
8. The decree of the conclusion of the case is dated March 7, 1988, while the sentence itself was given on the next day. It is evident therefore that c. 1601 - "After the conclusion of the case, the judge is to determine an appropriate period of time for the presentation of defence briefs or observations" - was not observed. The same, it seems, must be said regarding cc. 1602-1606.
9. All of this constitutes a serious violation of the right of defence of the parties; and therefore causes the irremediable nullity of the sentence, in accordance with c. 1620, 7° .
10. This is sufficient to solve the question before us. However, some further remarks would seem to be opportune. One cannot but be surprised that the appeal judges failed to provide for any further instruction in second instance, all the more so in that their own extremely brief sentence consists chiefly in criticism that the first judgement was based on insufficient evidence. They say: "we require evidence, not claptrap. There is a serious shortage of evidence [...]. Some of the evidence is very thin." They add: "'No financial support.' But this is not confirmed." [...] 'He was a heavy drinker.' He did drink but it is not confirmed that he was a heavy drinker [...]. 'Gambling.' The only thing confirmed is that he was a big gambler [...]. Accordingly, we conclude that it is not possible for us to give a constat decision [...]. We regret to have to add that the sentence of the first instance Court is seriously inadequate. It is a collection of summary statements and does not indicate how the conclusions were reached."
11. The judgement of the Appeal Court contains no in iure considerations; and it has an extremely brief in facto part (the words we have just quoted and almost nothing more). The difficulties the judges find, regarding the inadequacy of evidence, could have been appropriately expressed in a decree sending the case on to second ordinary examination. As a reasoned judicial evaluation of the facts of the case, made in the light of legal principles, they must however be considered totally inadequate.
12. Having weighed all of this fully, the undersigned auditors, in reply to the incidental question put to them, decree: CONSTARE, IN CASU, DE NULLITATE INSANABILI SENTENTIAE A TRIBUNALI APPELLATIONIS DIE 9 MARTII 1988 LATAE.
13. The case is therefore returned to the Appeal Court to be dealt with according to the norms of law.
Given at the Tribunal of the Roman Rota, October 18, 1990.
Cormac Burke, Ponens
Thomas G. Doran
Kenneth E. Boccafola