Last week’s post concluded the discussion on the non-clearance-based denial of ecclesiastical funerals. It identified the technical nomenclature for one subjected to a penal process (active subject): from a ‘suspect’ to the ‘investigated’ (suspect) to the ‘accused’ and finally to the ‘offender’. This means that a subject is not automatically an offender until the various stages have been completed. The post also highlighted the principles of imputability and innocence as the primary and subordinate principles of penal canonical law. Based on these, the law requires that the Ordinary or judge first hears from the accused before imposing a judgement. This integral part of penal canonical law is the focus of today’s post.
When the Pharisees discussed how to arrest Jesus, Nicodemus replied: “Does our law judge a man without first giving him a hearing and learning what he does?” (John 7:51). Hearing the accused before judgment is fundamental to every penal system. Chimamanda Adichie spoke of the danger of a single story. While not in the context of punishments, her TED talk reflects the natural and indispensable principle of objective evaluation and judgement of any situation.
Some preliminary canons under the obligation and rights of the Christian faithful are also worth considering. First, canon 220 states, “No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy.” This means the Church condemns a false accusation that illegitimately hurts a person’s good reputation. Protecting the good name of a subject is also important, even when a subject is still investigated for an offence (Canon 1717 §2). Canon 982 provides that “whoever confesses to have denounced falsely an innocent confessor to ecclesiastical authority concerning the crime of solicitation to sin against the sixth commandment of the Decalogue is not to be absolved unless the person has first formally retracted the false denunciation and is prepared to repair damages if there are any.”
Second, canon 221 states, “§1. The Christian faithful can legitimately vindicate and defend the rights which they possess in the Church in the competent ecclesiastical forum according to the norm of law. §2. If they are summoned to a trial by a competent authority, the Christian faithful also have the right to be judged according to the prescripts of the law applied with equity. §3. The Christian faithful have the right not to be punished with canonical penalties except according to the norm of law.” This means that the accused has the right to be judged according to the norms of the law.
There are two types of penal canonical processes. The first is the judicial penal process, which follows the ordinary contentious trial process, such as seen in marriage tribunals. The second is the extrajudicial penal process, “a type of penal process that abbreviates the formalities called for in the judicial process, for the sake of expediting the course of justice without eliminating the procedural guarantees demanded by a fair trial” (Dicastery for the Doctrine of Faith, Vademecum: On certain points of procedure in treating cases of sexual abuse of minors committed by clerics, 91).
Canon 1720 n.1 states that if the Ordinary is to adopt the extrajudicial process, “he is to inform the accused of the accusation and the proofs, giving an opportunity for self-defence, unless the accused neglected to appear after being properly summoned.” Regarding a judicial penal process, canon 1723 states: “§1. The judge who cites the accused must invite the accused to appoint an advocate according to the norm of can. 1481, §1 within the time limit set by the judge. §2. If the accused does not make provision, the judge is to appoint an advocate before the joinder of the issue; this advocate will remain in this function as long as the accused does not appoint an advocate personally.”
Therefore, in both processes, the accused must be summoned before judgment is given and penalty is imposed. The accused is entitled to an advocate (lawyer) to protect his or her interests in the penal trial. An accused who does not respond to the summon personally or through an advocate or procurator after being lawfully cited is considered absent (cf. Can. 1592).
To safeguard the interest of the accused and prevent lying under oath, which is a sin (lying) and another offence (perjury), canon 1728 states: “The accused is not bound to confess the delict nor can an oath be administered to the accused.” This gives the accused freedom to defend oneself in a trial. Lying under oath is a grave sin because an oath is to “invoke the divine truthfulness as a pledge of one’s own truthfulness” (CCC. 2150; Can. 1199). Lying under oath before an ecclesiastical authority is also the offence of perjury. Canon 1371 §3 states: “A person who, in asserting or promising something before an ecclesiastical authority, commits perjury, is to be punished with a just penalty.”
Furthermore, in discussing the case, “the accused, either personally or through the advocate or procurator, always has the right to write or speak last” (Can. 1725). Moreover, in pursuit of the truth and to protect an accused from unjust harm, canon 1726 states: “If at any grade and stage of the penal trial it is evidently established that the accused did not commit the delict, the judge must declare this in a sentence and absolve the accused even if it is also established that criminal action has been extinguished.”
A judgement given without granting the accused a right to defence is ipso facto, null and cannot be remedied (Can. 1620 n.7). One must note that refusal to exercise the right of defence or be lawfully declared absent from failing to appear does not constitute a denial of the right to defence.
Next week’s post examines if some seemingly penal measures regarding the loss of an ecclesiastical office denied the accused a right to defence.
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
