» The Penal Process
» The preliminary investigation
§1 Whenever the Ordinary receives information, which has at least the semblance of truth, about an offence, he is to enquire carefully, either personally or through some suitable person, about the facts and circumstances, and about the imputability of the offence, unless this enquiry would appear to be entirely superfluous.
§2 Care is to be taken that this investigation does not call into question anyone’s good name.
§3 The one who performs this investigation has the same powers and obligations as an auditor in a process. If, later, a judicial process is initiated, this person may not take part in it as a judge.
§1 When the facts have been assembled, the Ordinary is to decide:
1° whether a process to impose or declare a penalty can be initiated;
2° whether this would be expedient, bearing in mind can. 1341
3° whether a judicial process is to be used or, unless the law forbids it, whether the matter is to proceed by means of an extra-judicial decree.
§2 The Ordinary is to revoke or change the decree mentioned in §1 whenever new facts indicate to him that a different decision should be made.
§3 In making the decrees referred to in §§1 and 2, the Ordinary, if he considers it prudent, is to consult two judges or other legal experts.
§4 Before making a decision in accordance with §1, the Ordinary is to consider whether, to avoid useless trials, it would be expedient, with the parties’ consent, for himself or the investigator to make a decision, according to what is good and equitable, about the question of harm.
The acts of the investigation, the decrees of the Ordinary by which the investigation was opened and closed, and all those matters which preceded the investigation, are to be kept in the secret curial archive, unless they are necessary for the penal process.
» The Penal Process
» The development of the process
If the Ordinary believes that the matter should proceed by way of an extra-judicial decree:
1° he is to notify the accused of the allegation and the evidence, and give an opportunity for defence, unless the accused, having been lawfully summoned, has failed to appear;
2° together with two assessors, he is accurately to weigh all the evidence and arguments;
3° if the offence is certainly proven and the time for criminal action has not elapsed, he is to issue a decree in accordance with can. 1342-1350,
outlining at least in summary form the reasons in law and in fact.
§1 If the Ordinary decrees that a judicial penal process is to be initiated, he is to pass the acts of the investigation to the promotor of justice, who is to present to the judge a petition of accusation in accordance with cann. 1502 and 1504
§2 Before a higher tribunal, the promotor of justice constituted for that tribunal adopts the role of plaintiff.
At any stage of the process, in order to prevent scandal, protect the freedom of the witnesses and safeguard the course of justice, the Ordinary can, after consulting the promotor of justice and summoning the accused person to appear, prohibit the accused from the exercise of the sacred ministry or of some ecclesiastical office and position, or impose or forbid residence in a certain place or territory, or even prohibit public participation in the blessed Eucharist. If, however, the reason ceases, all these restrictions are to be revoked; they cease by virtue of the law itself as soon as the penal process ceases.
§1 When the judge summons the accused, he must invite the latter to engage an advocate, in accordance with can. 1481
§1, but within the time laid down by the judge.
§2 If the accused does not do this, the judge himself is to appoint an advocate before the joinder of the issue, and this advocate will remain in office for as long as the accused has not engaged an advocate.
§1 At the direction or with the consent of the Ordinary who decided that the process should be initiated, the promotor of justice in any grade of the trial can resign from the case.
§2 For validity, this resignation must be accepted by the accused person, unless he or she has been declared absent from the trial.
In the argumentation of the case, whether done in writing or orally, the accused person or the advocate or procurator of the accused, always has the right to write or speak last.
If in any grade or at any stage of a penal trial, it becomes quite evident that the offence has not been committed by the accused, the judge must declare this in a judgement and acquit the accused, even if it is at the same time clear that the period for criminal proceedings has elapsed.
§1 The offender can appeal, even if discharged in the judgement only because the penalty was facultative, or because the judge used the power mentioned in cann. 1344 and 1345
§2 The promotor of justice can appeal whenever he considers that the reparation of scandal or the restitution of justice has not been sufficiently provided for.
§1 Without prejudice to the canons of this title, and unless the nature of the case requires otherwise, in a penal trial the judge is to observe the canons concerning judicial procedures in general, those concerning the ordinary contentious process, and the special norms about cases which concern the public good.
§2 The accused person is not bound to admit to an offence, nor may the oath be administered to the accused.
» The Penal Process
» Action to repair damages
§1 In accordance with can. 1596,
a party who has suffered harm from an offence can bring a contentious action for making good the harm in the actual penal case itself.
§2 The intervention of the harmed party mentioned in §1 is no longer admitted if the intervention was not made in the first instance of the penal trial.
§3 An appeal in a case concerning harm is made in accordance with cann.
1628--1640, even if an appeal cannot be made in the penal case itself. If, however, there is an appeal on both headings, there is to be only one trial, even though the appeals are made by different persons, without prejudice to the provision of Can.
§1 To avoid excessive delays in a penal trial, the judge can postpone the trial concerning harm until he has given a definitive judgement in the penal trial.
§2 When the judge does this he must, after giving judgement in the penal trial, hear the case concerning harm, even though the penal trial is still pending because of a proposed challenge to it, or even though the accused has been acquitted, when the reason for the acquittal does not take away the obligation to make good the harm.
A judgement given in a penal trial, even though it has become an adjudged matter, in no way creates a right for a party who has suffered harm, unless this party has intervened in accordance with can. 1733
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