I recently attended a conference in Rome, “La riforma operata dal m.p. ‘Mitis Iudex,’”sponsored by the Consociatio Internationalis Studio Iuris Canonici Promovendo—the international association of canon lawyers of which I am a board member—which dealt with the fiercely relevant topic of the new procedural norms for marriage nullity. When I heard that new legislation was about to take effect and that this conference happened to be organized on that very topic with some of the architects of the reform present, I knew I had to go.
In his introduction, Cardinal Coccopalmerio, himself a member of the reform commission, said that Pope Francis wanted to abbreviate and expedite the matrimonial nullity procedure with the motu proprio Mitis iudex. The three key elements of this reform were to be: (1) the abolition of the double conformity; (2) the composition of the collegiate tribunal with one cleric and two laity; and (3) the processus brevior with the bishop as judge. He failed to mention, however, that the reform took merely a few months and lacked the usual consultation of specialists worldwide. While the reform is merely procedural, the conference politely avoided the question of whether merely procedural reforms did not influence doctrine substantially, and how these reforms may have collateral effects.
In listening to professors Llobell and Moneta address the details of the reforming document, and in hearing the following Q&A session, a number of things became very clear to me, in particular about the use (or not) of the processus brevior. It was established, for example, that if the diocesan bishop were uncertain about the particular case, or the procedure in general, he should not use the processus brevior. Also raised was the concern that, while the defender of the bond can appeal a decision of the bishop in the processus brevior, there are legitimate concerns about how many defenders will have, in conscience, the courage to appeal such a decision of his own bishop.
Msgr. Bunge, a Rotal judge and one of the members of the reform committee, made a statement that struck me as deeply problematic. He referred to a decision coram Felici with a law section only four lines long, and gave that as the example of how decisions of bishops could look. The problem here is that the law section of a decision contains the essential legal and jurisprudential basis on which the arguments to arrive at moral certitude will rest. A good and solid law section will be pivotal for cases going through the processus brevior—to maintain the credibility of the decisions, to avoid abuses, and be clear on the nullity.
In private conversations, various members of the commission not only underscored the fact that the ordinary process had to be the rule and the processus brevior the exception, but they also admitted that the introduction of this processus brevior was meant to address particular situations where access to ecclesiastical tribunals was unavailable and the demand for canonical solutions very high. The example of Argentina was given over and over again. When one considers that Pope Francis emphasized that he wants a healthy decentralization, one has to question the prudence of such a massive reform of universal law to address such a particular and local problem. The conversation became somewhat comical when a colleague mentioned that, since the processus brevior must be done by the diocesan bishop himself and cannot be delegated, there could be no use of the processus brevior in times of a vacant diocesan see, periods which can last more than a year in the United States.
In his concluding remarks, professor Giuseppe dalla Torre brought to the fore the many unanswered questions. Of particular importance for the Italian context of the conference was his question about the relation between the new procedural norms and the concordatarian marriages. In essence, the concordat between Italy and the Holy See recognizes the civil effects of the religious marriage. When an ecclesiastical tribunal declares such a marriage null, the Italian court system can declare that this declaration of nullity is enforceable under Italian law, after going through an exequatur procedure. In 2001, in the famous Pellegrini-case, the European Court for Human Rights was asked about the violation of Article 6 of the European Convention on the ground that the Italian courts declared the decision of the ecclesiastical courts, annulling Ms. Pellegrini’s marriage, enforceable at the end of the proceedings in which her defense rights had been breached. Although the Court did not make a judgment about the ecclesiastical procedure, and in particular about the way she had been treated by the Roman Rota, the Court did so indirectly. The Court noted that “the right to adversarial proceedings, which is one of the elements of a fair hearing within the meaning of Article 6 § 1, means that each party to a trial, be it criminal or civil, must in principle have the opportunity to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision.”
The Court considered that the Italian courts breached their duty of satisfying themselves—that Ms. Pellegrini had had a fair trial in the proceedings under canon law—before authorizing enforcement of the judgment of the Roman Rota. That was in 2001, before Pope Francis and before the shorter processes introduced by Mitis iudex. Since the new procedural norms take away a number of procedural guarantees, the fear of many Italian colleagues is that we might see a hike in cases like the Pellegrini-case, rendering the canonical system incompatible with modern procedural norms, simply because basic due process norms are not respected or even acknowledged. That is embarrassing, at a professional and academic level for any juridic system. At the pastoral level, it is a shameful denial of justice.
Kurt Martens is a professor of canon law at The Catholic University of America.