Delicta Graviora Ius Processuale A Presentation by Msgr Charles J. Scicluna Promoter of Justice

1. Delicta Graviora Ius Processuale A Presentation by Msgr Charles J. Scicluna Promoter of Justice Congregation for the Doctrine of the Faith

2. A Short Commentary on the Motu ProprioSacramentorum sanctitatis tutela (30 April 2001) and the Praxis of the Congregation for the Doctrine of the Faith

3. I Guiding Principles

4. Guiding Principles • The body of canonical norms that [the CDF] is called to apply with justice and equity strives to guarantee both the exercise of the right of defence of the accused and the demands of the common good. John Paul II, Address to the Plenary of the CDF, 6 February 2004

5. Guiding Principles • Once the offence has been proven, it is necessary in each case to assess carefully both the just principle of proportionality between fault and punishment, as well as the predominant need to protect the entire People of God. John Paul II, Address to the Plenary of the CDF, 6 February 2004

6. Guiding Principles • [The protection of the People of God] does not only depend on the application of canonical penal law. Its best guarantee is the correct and balanced formation of future priests who are explicitly called to embrace with joy and generosity that humble, modest and chaste lifestyle that is the practical basis of ecclesiastical celibacy. John Paul II, Address to the Plenary of the CDF, 6 February 2004

7. Ratio legum • Canonical procedures are designed to protect the innocent and at the same time to mete out just punishment to the guilty. • This end is pursued by: • ascertaining the true facts of the case, • guaranteeing the right of self-defence, • presuming the innocence of the accused until he is proven guilty (or confesses to the crime).

8. II The Notitia Criminis and the ensuing Preliminary Investigation

9. A. The Notitia Criminis • denunciation by the victim: credibility of the person; motives • denunciation by third parties: reliability; motives for report • media reports • referral by the statutory authorities • admission of the cleric: forum internum non-sacramentale; forum externum

10. B. The Preliminary Investigation • The focused referral of the matter reported: alleged perpetrator; alleged victim; time; place; acts or actions • The credibility of the allegations in themselves • The credibility or reliability of the source • Notoriety/Publicity of the accusations

11. The Preliminary Investigation:Ways and Means • respectful of both canon and civil law; • professional and not amateur; • mindful of the demands of the common good; • not forgetful of the rights and dignity of both the Alleged Perpetrator and the Alleged Victim; • undertaken by any person delegated ad hoc by the Ordinary; • put on record in writing • initiated and closed by decree of the Ordinary

12. C. Follow-up to the investigation • The decision as to what should be done by way of follow-up is to be taken by the Bishop, after having prudently consulted the Promoter of Justice and the Local Review Board • Allegations which are clearly unfounded or unreliable should be dismissed as such • Other Allegations should be examined carefully

13. D. Referral toLocal Review Boards • Full compliance with diocesan policies • Transparency of proceedings • Confidentiality • Role of Alleged Victim • Role of Alleged Perpetrator • Role of Lawyers

14. E. Referral toStatutory Authorities • Local civil laws should be respected • Court orders should be followed • Local Ecclesiastical Authorities should always bear in mind that concessions praeter legem to civil authorities concerning access to confidential or secret archives create a presumption of waiver of privilege and could harm the legitimate right to Church liberty

15. F. Referral forPsychological Evaluation • Such referral should meet the demands of moral theology, human dignity, the common good • It is not necessary in every GD case and should not be used for undue pressure • The accused may reject such referral but will also have to face the consequences of his decision to refuse it: stante dubio de idoneitate ministerium impediendum est

16. G. “Adminstrative Leave” • The ministry of the Accused cleric should pro bono Ecclesiae be immediately limited if there is an indication that it may constitute a risk for minors or a scandal to the faithful.

17. H. Dealing with the Alleged Victim • The dignity and right to privacy of the alleged victim should be safeguarded • Therapy offered to the alleged victim should be reasonable and effective • Extra-judicial settlement of allegations should not be construed as hush-money

18. III Referral of the case to the CDF

19. The duty to refer: SST Art 13 • Quoties Ordinarius vel Hierarcha notitiam saltem verisimilem habeat [cfr can. 1717 CIC] de delicto reservato, • investigatione prævia peracta, • eam significet Congregationi pro Doctrina Fidei • quæ [… *] Ordinarium vel Hierarcham ad ulteriora procedere iubet, • [*] nisi ob peculiaria rerum adiuncta causam sibi advocet, • firmo tamen iure appellandi contra sententiam primi gradus tantummodo ad Supremum Tribunal eiusdem Congregationis.

20. The duty to refer: SST Art. 13 • Whenever the Ordinary or Hierarch receives a report of a reserved delict which has at least a semblance of truth [notitiam saltem verisimilem], • once the preliminary investigation has been completed, • he is to communicate the matter to the Congregation for the Doctrine of the Faith • Which […*] will direct the Ordinary or Hierarch [how] to proceed further, • [*] unless it calls the case to itself due to particular circumstances, • with due regard, however, for the right to appeal against a sentence of the first instance only to the Supreme Tribunal of the same Congregation.

21. WHICH CASESMUST be referred to the CDF? • All cases involving graviora delicta • Reported or committed after 30 April 2001 • Where the allegation is not manifestly false • Where the accused is still alive • Irrespective of statute of limitations

22. “HISTORICAL CASES”GD cases reported before 30.04.2001 WHAT ABOUT REFERRAL TO CDF? • Where case has already been tackled: NO NEED • Where no action was taken: MAY • Where action is now contemplated: MUST • [CAVEAT: Appeals and Recourses concerning GD historical cases MUST be referred to the CDF]

23. WHAT TO SEND TO THE CDF Standard Information: - Personal Data and CV of the Accused - Details of Allegations - Details of Civil Proceedings (Criminal; Civil Liability)

24. WHAT TO SEND TO THE CDF Ancillary Information: - Expert Advice (Risk Assessment; Psychological Evaluations) - Notoreity of Accusations and impact on the faithful - Details of present canonical status of accused including sustenance

25. WHAT TO SEND TO THE CDF Elements Necessary for Evaluation of the Case: - Response of the Accused (if available) -Votum of the Ordinary concerning procedure & expediency of any future ministry.

26. WHAT TO SEND TO THE CDF The Tabella: Summary of Case following standard tabulate provided by the CDF [ … ]

27. The Tabella • Available from the CDF • Should be filled in all cases • Indicates essential information • Should be corroborated by documents • Should be sent to the CDF with all the material available

28. Notandare: Referral of Cases to the CDF • The CDF will appreciate as much information as possible on the preliminary investigation and the findings of the diocesan review boards or equivalent consultative organs. • Thevotum of the Ordinary concerning the merits of the case and the procedures and measures to be adopted is of the utmost importance • The Accused and his Canonical Advocate are encouraged to make representations to the CDF at an early stage

29. The discretion exercised by the CDF [Described in CIC 1718§1; previously pertained to the Ordinary] • Whether one can proceed with a penal process • Whether it is expedient  can. 1341 • Whether the case should be resolved through process (judicial or extra-judicial) or through some other means • Whether the CDF will mandate the local instances or take on the case directly

30. Who takes the decision?Is it subject to review? • The decision is taken in Congressu Particulari [CP] which is composed of the Cardinal Prefect, the Archbishop Secretary, the Under-Secretary, the Promoter of Justice. The decision is ultimately the responsibility of the chair (the Prefect or the Secretary) • The CDF considers requests for revocation or amendment of such decisions • Although rarely used, the CDF also has the authority preemptively to consider the question of damages ( cfr can. 1718, § 4)

31. Options of the CDF • Request for direct intervention of the Holy Father • Authorisation of a Penal Process • Declaration, Authorisation or Confirmation of Disciplinary Non-Penal Measures

32. IV Direct intervention of the Supreme Pontiff

33. Dimissio ex officio • Dispensatio ab oneribus

34. Dimissio ex officio • Very grave cases, especially where custodial sentences have been inflicted by the civil authorities, will be considered by the CDF for direct referral to the Holy Father. • The priest concerned should first be asked whether he wants to ask for laicization and he should be accorded an opportunity to express himself on the matter. • The CDF asks for a dispensation from clerical celibacy in each case.

35. Once the Holy Father decrees dismissal from the clerical state and the Diocese is notified of the decree, the local Ordinary should ensure that the dismissed cleric is not left without some sort of financial support (can. 1350, §2).

36. There is no recourse or appeal against the decision of the Holy Father. • In cases of sexual abuse of minors, the Ordinary is authorised to publish and explain the reasons of the dismissal if the common good (including the safety of minors) requires such action.

37. Dispensatio ab oneribus • The CDF considers and processes requests by clerics (who admit having committed one of the delicta graviora) to be dispensed from the obligations of the clerical state including celibacy.

38. V Penal Processes

39. Types • Judicial penal process • Administrative / Extra-judicial penal process

40. Decision for a Judicial Process(SST art. 13) • in the diocese • coram Congregatione: advocatio Condicio: appellatio semper ad CDF: SST art. 14

41. Judicial Penal Procedures • These judicial procedures have to be authorised by the CDF. • First Instance Tribunals: Diocesan bishops are invited to constitute their own first instance tribunals for graviora delicta cases. • Any requests for dispensations concerning personnel should be referred to the CDF.

42. Second Instance CDF Tribunals: Second Instance has been reserved exclusively to the CDF. The CDF is however open to the possibility of nominating local canon lawyers as ad hoc judges of its Supreme Tribunal. The CDF will invite the local bishops to suggest names of canon lawyers of good repute who would be CDF judges and promoters of justice nominated by the CDF.

43. Administrative Penal Procedures • On 7 February 2003 the Holy Father John Paul II authorised a derogation of the MP SST art.7, permitting Administrative Penal Procedures for cases involving graviora delicta. • The use of this administrative procedure has to be authorised by the CDF. • It involves the application of can. 1720 that should be followed closely.

44. Canon 1720 • If the Ordinary believes that the matter should proceed by way of an extra-judicial decree: • He is to notify the accused of the allegation and the proofs, and give an opportunity for defence, unless the accused, having been lawfully summoned, has failed to appear; • Together with two assessors he is accurately to weigh all the proofs and arguments; • If the offence is certainly proven and a time for criminal proceedings has not elapsed, he is to issue a decree in accordance with cann. 1342-1350, stating at least in summary form the reasons in law and in fact.

45. CDF Praxis concerning can. 1720 • It should be clear that the Ordinary may freely decree a penalty short of dismissal from the clerical state. • If he deems it expedient and appropriate that dismissal be decreed, he should refer the matter to the CDF and transmit all the acts of the case. • The Prefect on behalf of the CDF will then decide whether or not to decree dismissal. • Recourse to the Ordinary Session of the CDF (Feria IV) is possible against the decision of the Prefect.

46. Administrative penal procedure(can. 1720) • If the Ordinary believes that the matter should proceed by way of an extra-judicial decree: • He is to notify the accused of the allegation and the proofs, and give an opportunity for defence, unless the accused, having been lawfully summoned, has failed to appear; • Together with two assessors he is accurately to weigh all the proofs and arguments; • If the offence is certainly proven and a time for criminal proceedings has not elapsed, he is to issue a decree in accordance with cann. 1342-1350, stating at least in summary form the reasons in law and in fact.

47. VI Administrative Measures

48. Disciplinary Measures • Usually involve a limitation of ministry • May involve removal from direct pastoral ministry (which is not dismissal from the clerical state) • Mainly decreed intuitu boni communi • The sustenance of the cleric has to be guaranteed

49. Examples of Administrative Measures • Removal from Parish (cann. 1740 – 1747) • Removal from any other ecclesiastical office (cann. 192 – 195) • Withdrawal of faculty to preach (can. 764); to hear confessions (can. 974); administer the sacraments and sacramentals (can. 835) • Declaration of impediment from exercising Holy Orders (can. 1044, § 2, 2°) • Any decision which affects the exercise of a person’s rights and duties (can. 223 § 2)

50. Remedies against Disciplinary Measures • A person subject to administrative measures has the right to hierarchical recourse to the CDF to contest the measures taken against him by the local Ordinary. • There is a right to further recourse to the Feria Quarta to contest the measures taken by the Prefect of the CDF in congressu particulari.