Supreme Tribunal of the Apostolic Signatura, Response Concerning the Competence of Appeal Tribunals Below the Roman Rota, 1998.


The opinion of the Apostolic Signatura was requested concerning marriage nullity cases which were given negative decisions in first instance and then appealed to second instance. The second instance court then adjudicates the appealed decision on new grounds as in first instance. The decision is then sent to that second instance’s appeal court possibly allowing the ratification by a third instance court, which would be examining this ground at second instance. The Apostolic Signatura clearly states that such an action is not permissible.




THE SUPREME TRIBUNAL OF THE APOSTOLIC SIGNATURA

In a letter dated *, the Very Reverend Judicial Vicar of Diocese N. proposed to this Tribunal the following question:

“Sometimes when Tribunals of first instance give negative decisions in formal marriage cases, the negative decision is appealed to the (competent Court of Second Instance). Sometimes (that Court of

pg. 1176

pg. 1177
Second Instance) will adjudicate the appealed negative decision on entirely new grounds as in first instance in accord with canon 1683. Some contend that this “new first instance” affirmative decision can now be sent by (that Court of Second Instance) to their appeal court. This could allow a ratification by decree by the third instance court, which would be hearing this ground at second instance. My question is whether this procedure is permissible. If such a procedure is not permissible, would such decrees of ratification be invalid? If decrees of ratification granted in such a procedure are invalid, what are the canonical reasons for this?”

The Apostolic Signatura responded.




THE SUPREME TRIBUNAL OF THE APOSTOLIC SIGNATURA

With the matter seriously considered, declared with regard to the matter:

a. According to the constant jurisprudence of this Apostolic Signatura, when a cause of the nullity of marriage pends in the grade of appeal at a tribunal of the second grade of jurisdiction and this tribunal admits a new heading of nullity and judges it as if in first instance, then it pertains to its appellate tribunal – which must necessarily be of the third grade of jurisdiction – to see to the new heading of nullity as if in second instance; and that tribunal of the third grade of jurisdiction in the Latin church is exclusively the Roman Rota, except for those indults legitimately granted; otherwise the decision rendered in third grade of jurisdiction as if in second instance must be held irremediably null because of the absolute incompetence of the tribunal by reason of grade (cf. cann. 1440 and 1620, 1º).

b. As is clear from the praxis of the Roman Rota, a sentence rendered in the second grade of jurisdiction as if in first instance for the nullity of a marriage, can be confirmed by decree in the third grade of jurisdiction by a competent tribunal as if in second instance (cfr. Can. 1682, §2).




RRAO (1998): 16-17.