THE RIGHT OF DEFENSE

Canon law gives laity and clergy the right of defense. In his address to the Roman Rota, January 26, 1989 (For Italian text, cf. Acta Apostolicae Sedis (hereafter cited AAS.) 81 (1989), pp 922-927). Pope John Paul stated, “I intend in today’s annual meeting to emphasize the importance of the right of defense in canonical judgment” (canonical trial – Italian text: “giudizio canonico”). The technical term iudicum in the Latin text of the Code refers to the juridical trial.

Father Frans Daneels, O.Praem, J.C.D.Promotor of Justice of the Supreme Tribunal of the Apostolic Signatura wrote, “although this address does not give an authentic interpretation of the technical sense of the law, they should be considered with due respect, 1) knowing the mind of the legislator has its own importance for the proper interpretation of the law (cf. C.17), 2) a “religious submission on intellect and will” is to be paid to the teaching which the Supreme Pontiff enunciates in these allocutions concerning fundamental rights and obligations (cf. Periodica, 79 (1990), pp. 243-266.)

Pope John Paul II further stated: “the new Code of Canon Law attributes great importance to the right of defense. Concerning the rights of the faithful, c.221:1 states ‘that Christ’s faithful may lawfully vindicate and defend their rights they enjoy in the Church, before a competent ecclesiastical forum in accordance with the law.” Paragraph 2 continues: “if any member of Christ’s faithful are summoned to trial by the competent authority, they have the right to be judged according to the provisions of law, to be applied with equity.”

Canon 1620:7 of the Code explicitly determines the irremediable nullity of the sentence is one was denied the right of defense, while canon 1598:1 provides us with the following principle which must guide all juridical activity in the Church, namely, “the right of defense must always remain intact”. Father Daneels writes that “one can hardly conceive of a subjective right without the concomitant right to its protection. Furthermore, if the Christian faithful are summoned to judgment, they also enjoy the right to a legal process in which the requirements of the law are observed, these requirements which are to be applied with equity.” (Cf. Studia canonica, 27, (1993), pp 77-95).

Msgr. Gregory Erlebach, J.C.D. a Rotal judge, argues that the Rota has always upheld the importance of the right of defense and it is a natural right. (Cf. G. Erlebach: “Ob ius defensionis denegatum, nella giurispurdenza rotale,” Studia giuridici, XXV, Liberia editrice Vaticana, 1991).

There are Rotal decisions that support the opinion of Msgr. Erlebach. (Cf. Coram Mannucci, 27 February 1930, Sacrae Romanae Rotal Decisions (hereafter cited SRR) 22, 1930); Coram Wymen March 9, 1955: “and that this right comes from the natural law”, cf. SRR 47 (1955), p.222; Coram Stankiewicz, November 22, 1988. Monitor Ecclesiasticus, 113 (1988, p.322).

Pope John Paul II further stated in his allocution that “one cannot conceive of a just judgement (fair trial – Italian text, “un giudizio equo”) without the “contradictory” (due process of law) that is to say without the concrete possibility granted to each party and to be able to know and contradict the requests, proofs, and deductions adopted by the opposing part or “ex officio”. He further mentioned that, “this right of defense in the case should be exercised according to the just depositions of positive law.” He also stated that, “in a penal case, however, there must be a de facto defense, indeed a technical defense, because in a penal trial the accused must always have an advocate.” (Cf. Cc.1481:2; 1723).

Keeping in mind the proper role of positive law in this regard, one can understand very well the words of Cardinal Sabattani of the Supreme Tribunal of the Apostolic Signatura: “The right to one’s own defense is to be exercised not at the whim of the party but according to the norm of law.” (Cf. Monitor Ecclesiasticus 110 (1985) p.439).

He concluded, “Ten years ago, in my first address to this tribunal, I had this to say, ‘The task of the Church, and her historical merit, of proclaiming man’s fundamental rights at all times and all places, does not exempt her but, on the contrary, obliges her to a speculum iustitiae before the world.” (Address of February 17, 1979, Italian text in AAS, 71 (1979), p.423). He concluded: “I invite all you who are engaged in the administration of justice to safeguard in this perspective the right of defense.”

John Paul II also stated in the same address to the Roman Rota in 1979 that the judge, because of the reverence due to the rights of the human person, which are to be safeguarded with every care and concern, is bound to the close observance of procedural norms, which are certainly for the protection of the rights of the person. (Cf. L’Osservatore Romano, February 26, 1979, p.6).

It is clear from the doctrinal teaching and jurisprudence of the Roman Rota, Apostolic Signatura and Papal teaching that the right of defense is intrinsic to the essence of natural law and divine positive law. The Church has always understood that it cannot dispense from natural law. The right of defense, therefore, is a fundamental presumption of all law.


In conclusion, I maintain in the light of the above jurisprudence that any decree, issued without the right of defense, by the Supreme Pontiff, Roman Tribunals, Roman Congregations, decrees of bishops and ecclesiastical tribunals is null and void (irrita est) and does not have to be observed and it can be appealed.

So if an official of the tribunal did not protect the right of defense or was negligent to the point that the right of defense was not protected, then the sentence would be invalid. Canon 1620:7 would support this argument.

One final comment. We also know from civil law in the U.S. that any person accused of a crime must be provided legal counsel at the expense of the State. I hope that my comments help.

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