Roman Rota, Norm 58 §2 and Commentary, 2010.


Following the meeting with the Canon Law Society of America President, Vice President and Executive Coordinator in March 2010, officials of the Roman Rota prepared an English translation and commentary on Article 58 from the Normae Romanae Rotae Tribunalis. The unofficial English translation of the article and the commentary follow.




Art. 58 - §1. In gradu appellationis, postquam constiterit de legitima causae prosecutione, Ponens decretum dabit de dubio vel dubiis disceptandis; quod, omnibus in causa intervenientibus notificandum, locum tenet citationis et litis contestationis, nisi partes, ex Iudicis praecepto aut ex sua petitione coram eodem sisterint. Contra idipsum decretum item unus patet recursus, de quo in art. 57 §2.

§2. Quodsi agatur de causa nullitatis matrimonii, agenda ad mentem can. 1682 §2, praemonitis partibus et audita vinculi Defensore, Turnus decretum dabit, quo vel decisionem continenter confirmatur, vel motiva definite et singillatim exponent quae assertae nullitati statu quo obstent atque ideo causam admittat ad ordinarium novi gradus examen, vel denique instructionem suppletivam forte perficiendam indicet necessariamantequam causa ad definitivam sententiam remittatur. In altero et tertio casu, Ponens, cognita partium voluntate de iudicio prosequendo, causam ulterius curabit, iuxta §1 huius articuli.

Art. 58 - §1. At the level of appeal, after he has established there is a legitimate pursuit of the appeal, the Ponens will issue a decree determining the doubt or doubts to be resolved; once communicated to all involved in the case, this decree takes the place of the citation and the joinder of issues, unless the parties, either by reason of their own petition or by reason of the Judge’s ruling, are to present themselves before him. Against the aforementioned decree it is clear there is but one recourse available: that found in Art. 57 §2.

§2. However, if it deals with a case of marriage nullity that is to be handled according to Canon 1682 §2, the parties having been apprised and the Defender of the Bond having been heard, the Turnus will issue a decree which either will immediately confirm the decision, or which will admit the case to an ordinary examination in a new instance and therefore set forth precise individual motives which stand in the way of the status of the alleged nullity, or finally, which will indicate that a necessary supplemental investigation must be performed before the case can be brought to a definitive sentence.

In the second and in the third option, the Ponens, having been aware of the intent of the parties to pursue the case, will order the case further, according to §1 of this Article.




Commentary

The Norms of the Roman Rota (Normae Romanae Rotae Tribunalis) were approved in forma specifica by the Holy Father on 7 February 1994 (Cfr. AAS 86 [1994] 508-540 and AAS 87 [1995], p. 366). These Articles describe the internal procedures used by the Roman Rota both in its structure and in its adjudication of cases. The Norms constitute therefore particular law for the Apostolic Tribunal of the Roman Rota.

Article 58 §1 provides an accelerated procedure for admission of any case into formal trial on appeal at the Rota.

The Article 58 §2 is of important interest to Ecclesiastical Tribunals regarding Matrimonial Nullity Trials before the Rota. This Article has created some unnecessary confusion for lower Courts when decrees of the Rota are issued in matrimonial nullity trials. This confusion undoubtedly arises because Article 58 §2 does create some procedural additions/modifications for the Roman Rota beyond those procedures found in canon 1682 §2.

Article 58 §2 envisions three possible options for the Turnus to take in cases coming to the Rota on appeal under the provisions of canon 1682 §2. The Turnus has 3 options available from which to choose. (1) The Turnus can issue a decree declaring the immediate (continenter) confirmation of the Sentence which declared the nullity of marriage in First Instance; OR (2) The Turnus can issue a decree remanding the case to formal trial in the Rota, enumerating all the negative factors which have to be overcome in a second instance trial before the Rota; OR, finally (3) The Turnus can issue a decree remanding the case to formal trial in the Rota, indicating that the case is not without merit but that it requires some specific further supplementary investigation before a Sentence can be rendered.

In addition, Article 58 §2 requires a second action on the part of one or both parties for the case to move forward if the Turnus chose to issue a decree remanding the case into formal trial. This requirement is not found in the Code, but it is obligatory for such cases in the Rota. Upon receipt of the decree at least one of the parties is required to notify the Rota of his/her intent to pursue the case if the case is to proceed any further. Lacking the declared intent by one of the Parties within the specified time period (terminus peremptorius) set forth in the decree, the Ponens will archive the case. Sometimes the specified time period is mentioned in the letter accompanying the Publication of the Decree. Even if the decree does not contain a clause requiring the parties to indicate their intent to pursue the case, the parties nonetheless must indicate their intent to pursue the case, for it to move forward.

Note well: if the case is archived due to the absence of any intent to pursue the case, the case can only be reopened before the Rota, i.e. the Rota retains exclusive jurisdiction over the case even if it is archived. No other appellate ecclesiastical Tribunal has jurisdiction to reopen the case. Further, if the case is remanded into formal trial (option 2 and 3), the parties are not free to opt to have the case tried in the local appellate Tribunal instead of the Rota. The only choice available to them is to pursue the case before the Rota or let it be archived, and the case can only be reopened at some later date at the request of at least one of them.

The reason for the distinction of two different styles in writing a decree remanding the case into formal trial can be inferred from these aforementioned provisions: the reason is an extension of the right to defense to the parties who have already received one affirmative decision. The parties should know what difficulties they are facing in pursuing the case in order that they may determine whether they are able to overcome the difficulties and obstacles raised in the decree. In option 2, the judges indicate elements which lead them to believe the acts as presented tend toward a Negative rather than to an Affirmative Sentence. In option 3, the Judges indicate that they do not believe the case is totally without merit, but delineate some elements and/or some lacunae which must be investigated in depth and resolved before they could arrive at the necessary moral certitude for rendering a decision. Consequently the two types of decrees make the parties aware of the severe problems the Turnus has with the case file as it stands. The party may realize that present circumstances may preclude his/her ability to overcome those difficulties should the case go forward at this time (e.g., perhaps there is a custodial case in civil court pending regarding the children of the marriage, and the Auditors may be requiring that the parents of the Respondent or witnesses on the Respondent’s side be interviewed. The Petitioner may fear he/she cannot secure that testimony until the civil case is concluded. To pursue the case without that testimony, given what the decree says, might jeopardize the adjudication of the case in 2nd instance before the Rota).

Requiring the parties to assess the difficulties which the Prelate Auditors found and listed in the decree only assures that the case does not proceed automatically to conclusion and Sentence. This additional step therefore provides some added element for the right of defense to the parties in cases in which the First Instance Decision could not be confirmed immediately by Decree.

It is for the parties through their local Tribunal or the Tribunal of case origin, to advise the Rota of the intent of either or both of the parties to pursue the case further.

Points to remember:

1. A decree remanding a case to formal trial in second instance, remands it to trial in second instance before the Roman Rota alone. The case is not being remanded back to the local appellate Tribunal of Second Instance as some erroneously have interpreted the decree. No other appellate Court can take up the case once it has been legitimately appealed to the Rota.

2. Try to ascertain whether the decree remanding the case into formal trial falls under Option 2 or Option 3. Then assist the party to understand the nature of the problems listed in the Rotal Decree and help the party assess whether he/she believes the testimonies or proofs to overcome those difficulties can be secured.

3. Tell the party he/she needs to specifically ask the Rota to continue with the case for it to move any further. If neither parts asks to pursue the case, both parties should be aware that the case can be opened again only at the Rota and then only upon the request of either or both of them.

4. Once one or both of the parties indicates intent to pursue the case, an ex officio advocate will be appointed for the Petitioner in cases which have come from the USA according to the existing Agreement between the US Episcopal Conference and the Dean of the Roman Rota. Note well: when a Respondent appeals a case to the Roman Rota, the Respondent does not become the “Petitioner” in the Rota.




Roman Rota, Norm 58 §2 and Commentary, CLSA, Roman Replies and Advisory Opinions, 2010, 59-62.