Brief Note on the Contentious-Administrative Process and the Jurisprudence on the Status and Use of Churches

Occasionally, the Supreme Tribunal of the Apostolic Signatura (hereafter Signatura) authorizes publication of some of its decrees. Such authorization is a great benefit to canonists. The publication of the three decrees presented here provides an opportunity to examine briefly some aspects of the procedural law that governs the Signatura in its own processes and to gain some insight into that tribunal’s own jurisprudence.

At the outset, it should be noted that although we are presented with three decrees, they involve only two recourses, since two of these decrees are from the same case. For the purposes of this commentary, these three decrees will not be considered chronologically but as they naturally fall into their two respective recourses.¹ Both recourses concern the modification of parishes and what the recurrents claim was the de facto closure of churches.² The decrees contain important jurisprudence concerning the loss of a church’s parochial status due to a parish merger and what might be considered the minimum requirement for a church to be open and accessible to the faithful. Before examining that jurisprudence, however, a look at the form of the decrees themselves can help to shed some light on the Signatura’s procedures for examining these recourses.

Decrees of the Signatura are ordinarily any of three types: decrees of the Secretary, of the Prefect in Congressu,³ or of the College of Judges. In the first two types, the heading is simply “Decree,” while decrees of the College of Judges contain the heading “Definitive Decree” or “Definitive Sentence.”⁴ Of the three decrees presented here, one was issued by the Secretary (prot. n. 48760/14 CA, dated March 25, 2014) and two were issued by the Prefect (prot. n. 48760/14 CA dated January 21, 2015 and prot. n. 48568/13 CA dated May 30, 2014).⁵ Although the Prefect’s decree of May 30, 2014 contains several references to a definitive sentence of the College of Judges of May 21, 2011, that definitive sentence itself has not been published here with these decrees, because it was already published earlier.⁶

The reason for the differences in these three types of decrees lies within the procedural law of the Signatura. In accord with Pastor bonus, the Signatura is governed by its own law.⁷ As an administrative tribunal, the Signatura hears challenges to the decrees of the Roman Curia, including at times challenges to its own decrees.⁸ In hierarchical recourses, challenges to administrative decrees are presented to the hierarchical superior (cf. c. 1737 §1). This would not apply to the Signatura, however, since it is not the hierarchical superior of other dicasteries. As a result, cases presented before the Signatura do not take the form of hierarchical recourses. Instead, they take the form of contentious-administrative processes.⁹ The procedures for hierarchical recourses outlined in canons 1732–1739 do not apply. Instead, in examining these recourses, the Signatura follows its own proper law (Lex propria) issued by Benedict XVI in 2008.¹⁰

According to the Lex propria, after having heard the Promotor of Justice, the Secretary can reject in limine a request for recourse due to a number of specific reasons, or he can advance it to the Prefect for judgment. When a recourse comes before the Prefect, he will hear the Procurator-Advocates for both parties as well as the Promotor of Justice and then render his decision.¹¹ Lastly, the College of Judges can adjudicate the matter, concluding the recourse by issuing a definitive decree or definitive sentence. The rejection of the recourse in limine by the Secretary (Lex propria art. 76 §1) can be appealed to the Prefect (ibid., §3), though if the rejection is then confirmed by the Prefect in Congressu it is no longer subject to any legal remedy (ibid., §4). If, however, a recourse has only been rejected by the Prefect in Congressu, it would still be possible to make recourse to the College of Judges against the Prefect’s decree of rejection (Lex propria art. 84). There...