The events took place in the diocese of Cádiz and Ceuta, where the then bishop, Rafael Zornoza did not issue any formal decree of appointment of the judges who made up the criminal court in charge of prosecuting the case. In addition, he elected judges who were from another diocese, but without appointment by decree. Precisely this absence of express constitution of the court by the ordinary diocesan constituted the core of the challenge raised before the Roman Rota.
The foundation of nullity invoked by defense
The defense invoked the canon that insanibly declares the sentence handed down by a judge without power to judge.
The nullity complaint was based mainly on canon 1620 of the Code of Canon Law, which considers insanibly void the sentence rendered “by an absolutely incompetent judge” or “by those who lack the power to judge in the court in which the sentence was given”.
According to the thesis held in the appeal, criminal judicial authority cannot be presumed or implicitly derived from subsequent proceedings, but requires a concrete and formal act of appointment by the ordinary.
Judges outside the diocese
In addition, some members of the court were not priests of the diocese or habitually exercised judicial functions in it.
Therefore, the controversy acquired a special relevance, since the judges who made up the criminal court were not priests belonging to the diocese where the process was developed or ordinarily exercised ecclesiastical judicial functions in it.
Precisely for this reason, the defense argued that it was even more essential the existence of an express episcopal decree, which unequivocally accredited the valid constitution of the court and the effective attribution of criminal judicial authority to its members.
The situation became even more unique during the processing of the case, when one of the priests acting as judge (Theodore León) - without also stating decree of episcopal appointment as a member of the court - was appointed bishop and removed from the procedure. The priest who subsequently became the court in place of his would not have been appointed by formal decree of the ordinary.
For the defense of Rafael Vez, this succession of substitutions and actions without express designation evidenced the absence of a valid legal constitution of the criminal court “ad normam iuris”.
The contradiction denounced by the defense: Bishop Zornoza did issue a formal decree to appoint the Promoter of Justice
One of the most striking arguments of the appeal focused on the fact that the bishop himself did expressly issue a formal decree of appointment of the Promoter of Justice that intervened in the criminal case.
He was also a priest outside the diocese in which the process was carried out, but whose designation was documented by the corresponding express episcopal act in the form of a decree of appointment.
The defense stressed precisely this apparent contradiction: while the Ordinary considered it necessary to formalize by decree the appointment of the Promoter of Justice, there is, however, no equivalent act with respect to the judges in charge of prosecuting and rendering a sentence in the criminal case.
The thesis of the Court of the Rota: The will of the Bishop would be sufficient to validly confer judicial power, without the need for a decree of appointment
Despite this, the Rota considers sufficient the tacit or implicit acceptance of the bishop, deduced from the development of the process and the continued action of the court, to understand validly conferred the judicial power necessary to know the case.
The decree argues, in essence, that the will of the ordinary can be inferred from his institutional behavior and from the continuity of the procedure, even if he does not record documentary a specific decree of appointment of the judges.
In this way, the rotating court prioritizes the principle of the preservation of procedural acts and the stability of judicial proceedings against a strictly formal interpretation of the canonical requirements on the constitution of the court.
A doctrine taken from the matrimonial sphere: La Rota transfers to the criminal process criteria previously used in causes of marriage nullity.
To substantiate this broad interpretation of judicial authority, the judges of the Roman Rota rely on a previous judgment regarding a marriage nullity process.
In that decision, which has nothing to do with criminal proceedings, the rotating court had considered a procedure valid, despite certain irregularities in the action of the ecclesiastical court, understanding that the intervention and continued acceptance of the competent authority were sufficient to heal or supply non-essential formal defects.
From that doctrine, the Rota now transfers to the criminal field the criterion that the will of the bishop can also be manifested in a tacit or implicit way through the tolerance and continuity of judicial proceedings, even without express decree of appointment of judges.
A hard blow to canonical procedural formalism: Canonists warn of the doctrinal impact of resolution
The resolution implies accepting a particularly dangerous principle in the field of canonical criminal law, since it considerably limits the practical scope of structural nullities based on defects in the constitution of the judicial body.
Canonists consulted by Religion Digital recall that the rules of the canon law relating to the constitution of the courts necessarily presuppose a formal act of appointment or appointment of judges, since only in this way can the judicial authority “ad norm iuris” be validly conferred.
Hence, these rules implicitly include the classic legal principle nullus iudex sine constitutione : there can be no legitimately an ecclesiastical judge without prior legal constitution by the competent authority. Until today, in order for a priest to exercise the office of judge in an ecclesiastical tribunal, his appointment by decree of the bishop was habitual.
However, the resolution of the Rota points to a jurisprudential line favorable to broadly interpret the “Episcopi volunteers” above the traditional rigidities of canonical procedural law, allowing to save criminal proceedings and avoiding their complete annulment by organizational or formal defects.
“The resolution is a serious blow to those who defend a particularly strict interpretation of the procedural rules, considered of public order and whose violation was ordinarily substantiating the nullity of actions,” the canonists point out.
“The decision may open up an important doctrinal debate on the minimum guarantees necessary for the development of proceedings before ecclesiastical courts.”