Decree of March 26, 1992 (new proposition of a case; nullity of a sentence)
[English version: Studia canonica, 26 (1992), pp. 487-489]
I. The Facts
1. RN and RS married on 9 December 1967 in the Church of the Assumption in the City of
Once the acts of the case were received, the defender of the bond of the Rota raised his own querela nullitatis against the decree of ratification, on the grounds of the total absence in the decree of the motivation or reasons prompting it, against the norm of c. 1682, § 2, read in conjunction with c. 51. The rotal turnus, meeting on 16 January 1992 to examine the question, decreed a delay so that the whole question should be presented according to the mind of the turnus. By a subsequent decree of the Ponens, the question was formulated in the following terms:
1) whether the sentence of the Tribunal of Y of 24 September 1990 is null;
2) and, if the answer is negative, whether the decree of confirmation of the Provincial Appeal Tribunal of 14 December 1990 is null;
3) and, if the answer to 2) is affirmative: whether the sentence of the Tribunal of Y should be immediately confirmed;
4) and, if the answer to 2) is negative: whether a new proposition of the case should be granted.
We must today therefore answer these questions.
II. The Law
2. Canon 1682, § 2, lays down: "If the sentence in favor of the nullity of marriage was in the first grade of trial, the appellate tribunal by its own decree is to confirm the decision without delay or admit the case to an ordinary examination of a new grade of trial." The decree in question falls under the prescription of c. 51: "A decree should be issued in writing, giving, in the case of a decision, the reasons which prompted it, at least in a summary fashion."
3. In the case before us, the advocate for the petitioner invokes an opinion published in 1973 (Ephemerides iuris canonici, 29 (1973), p. 328), according to which a decree of confirmation is not a sentence quoad substantiam, and therefore does not fall under the prescription of c. 1892, 2° [i.e., of the old Code]. This opinion however was explicitly and authoritatively rejected by a decision of the Pontifical Commission for the Interpretation of the Decrees of the Second Vatican Council, approved by the Pope on 14 February 1974. To the doubt "whether in the decree referred to in the M.P. Causas matrimoniales, VIII, § 3, and IX, § 1, it is sufficient for the college simply to declare the decision of first grade confirmed, or to admit the case to an ordinary examination of second grade; or whether it is rather required that, in the fashion of a sentence, the decree should express the reasons both in law and in fact," the Commission replied: "In the negative to the first; in the affirmative to the second; that is, in view of the general principles of canonical procedure (cf. cc. 1840, § 3; 1874, §4; 1875 of the Code) which are not derogated by the M.P. Causas matrimoniales of 28 March 1971; and in view also of the importance of the decision of second instance, from which recourse can be had to a higher court, the reasons both in law and in fact are to be indicated in the same decree at least briefly or in a summary fashion, whether it is a question of confirming an affirmative sentence of a preceding grade, or of admitting the case to an ordinary examination at a higher level" (Enchiridion Vaticanum, S1 (1962-1987), pp. 484-487).
4. The reasons for this are obvious. A first instance sentence confirmed by decree becomes executive (cc. 1684-1685). Therefore the decree has the value and importance of a second sentence; and must be the fruit of as deep a judicial deliberation on the part of the judges as they are obliged to exercise when giving a judgement in second instance. Confirmation by decree means that the judges are satisfied that the sentence corresponds to a correct and apt interpretation of the law, and is in accordance with the facts which have emerged in the instruction of the case. The judges of the higher court in other words, having thoroughly read the acts, feel that there are no substantial contradictions, weaknesses or doubts which can reasonably be alleged against the sentence, and which would call for further investigation in an ordinary process of second degree.
5. It follows that, in order to legitimately hand down their decree of ratification, the judges of the higher tribunal must attain that moral certainty which a judicial decision always calls for (and this requisite can be prudently said to take on greater importance if the first instance decision was given by a single judge). Such certainly cannot be acquired without a thorough weighing of the acts, in the light of the pertinent and accepted jurisprudential principles. Hence the need that the judges in their decree should make at least a brief exposition of their reading of the law and the facts of the case. It is not sufficient that they simply say they accept or agree with the statement of legal principles and with the factual argument of the first instance.
6. The non-observance of this requisite could lead to a "rubber-stamp" procedure, where confirmations by decree are given automatically, without any particularized evaluation of the pertinence of the legal principles invoked, and — especially — of the merit of the case. If such were allowed to happen, procedural norms designed to ensure that the administration of the law accords with truth and justice, would have been emptied of effect.
III. The Argument
7. Regarding the plaint of nullity against the sentence of first grade: It seems to us that this plaint, raised by the respondent, cannot be upheld. She argues that competence was granted to the Court of Y in violation of law and her rights. But from the acts it appears that while she did protest against competency being granted to Y, she addressed her complaints to this Court, not — as was logical and right — to X (Acts, 88). Canon 1673, 3° , states that in cases regarding the nullity of marriage, the competent tribunals include "the tribunal of the place in which the petitioner has a domicile, provided that both parties live in the territory of the same conference of bishops and the judicial vicar of the domicile of the respondent agrees, after hearing the respondent." It seems that, whatever her reasons, it was the respondent herself who lived in the city of
8. As regards her other complaints (II, 45), it does not appear that she was denied an opportunity to review the evidence of the case, as provided by c. 1598, § 1. It may be that the court-appointed advocate could have done more to contact her; but it does not seem that her right of defense suffered from this. She had every opportunity to present witnesses and evidence; but she did not choose to cooperate with the Tribunal of Y.
9. Regarding the nullity of the decree of confirmation: The decree of ratification consists wholly in these meager words: "The judges of the court of second instance gathered to answer the following doubt: WHETHER THE AFFIRMATIVE DECISION OF THE FIRST INSTANCE SHALL BE CONFIRMED? [...] having considered the law and the facts of this case, have answered the proposed doubt as follows: IN THE AFFIRMATIVE, that is to say, the tribunal of second instance ratifies and confirms the affirmative decision given in first instance on the same grounds, namely, DEFECTIVE CONSENT DUE TO FORCE AND FEAR IMPOSED UPON THE PETITIONER" (II, 26). It is evident that this decision — not preceded by any exposition of the facts, and containing no legal or factual reasons or arguments — does not even minimally satisfy the norms outlined above for the issuing of a decree.
10. Having considered all these points of law and of fact, the undersigned auditors of this Turnus decided that the incidental questions should be answered as follows:
1) in the negative;
2) in the affirmative; in other words, the decree of confirmation of the Provincial Appeal Tribunal of 14 December 1990, is null; the case is therefore to be returned to the
3) does not arise;
4) does not arise.
Given at the Tribunal of the Roman Rota, 26 March 1992.
Cormac Burke, Ponens
Thomas G. Doran
Kenneth E. Boccafola