LSP-I Appendix 2 - Canonical Processes

PART A

Prelature Safeguarding Policy (PSP)

Art. 226 (PSP Art. 21)

During the preliminary investigation, among other things that might be relevant, as much as possible should be ascertained about the conduct which is being investigated and its circumstances, the personal details and ages of the persons concerned, the harm caused and the possible involvement of the sacramental forum. Documents, evidence and testimonies may be gathered from the various contexts and environments in which the person under investigation would have acted. The Investigator may also make use of statements, testimonies, documents and reports of experts collected in the civil sphere, to which they may have access, as well as any judgment or decision of the courts of the State concerning the matters under investigation.

Art. 227 (PSP Art. 22)

In the course of the preliminary investigation, the following objectives shall be pursued:

a) to try to achieve the spiritual and psychological recovery of each person involved,

b) to obtain, without delay and in whatever manner may be appropriate to the case, the testimony of the injured party,

c) to inform the victim or his or her representatives as to the rights of the injured party and how to enforce them, including the possibility of presenting evidence and requesting to be heard, directly or through an intermediary. 

d) to inform the same persons, if they so request, of the outcome of the investigation and of the course of subsequent events in the process,

e) to advise the injured person to make use of the services of civil and canonical advisers,

f) to safeguard the injured person and his or her family from any intimidation or retaliation,

g) to protect the good name, privacy, and confidentiality of personal data of the parties involved.

 ► Indicator R4.A | Page R-46  | Template 1: Example Information for Complainants

Art. 228 (PSP Art. 23)

The presumption of innocence must always be guaranteed and calling into question the good name of the person under investigation (hereinafter, “the respondent”) is to be avoided. Unless there are serious reasons to the contrary, the respondent must be promptly informed of the opening of the investigation and of what has occasioned it. The respondent should be encouraged to make use of the services of civil and canonical advisors and should also be offered spiritual and psychological support.

Art. 229 (PSP Art. 25)

If the preliminary investigation establishes at least the plausibility of the notitia which gave rise to it, the Regional Vicar shall act in accordance with the procedures required by canon law and shall inform the competent civil authorities. Otherwise, the Regional Vicar shall issue a reasoned decree to dismiss the case, retaining documentation in his confidential archive which certifies the steps taken and the reasons for the decision made. Nevertheless, when the accused is a cleric, the DDF shall be informed (cf. SST, Articles 6 and 16) – even when it has been decided to dismiss the case – for which purpose the Regional Vicar shall send an authenticated copy of the minutes of the investigation and the corresponding decree to the Curia of the Prelature as soon as possible.

PART B

Regional Safeguarding Policy (RSP)

Art. 230 (RSP Art. 40)

With due regard to the norms of canon and civil law, the Investigator may use whatever means he considers useful for gathering relevant information about the subject matter of the case (cf. Can. 1717 §3 CIC). In conducting interviews, he will instruct those interviewed to keep the existence of the investigation private, as also whatever they may come to know because of their participation in it. No obligation of secrecy can be imposed on them with regard to any personal knowledge they may have had prior to the interview (cf. VELM Art. 4 §3). The handling of such information is governed by the general criteria of Christian morality and civil law.

Art. 231 (RSP Art. 41)

Those who are to be interviewed by the Investigator will be informed of their right to be accompanied by another person of their choice. This person may be a civil or canon lawyer. If a minor or vulnerable person is to be interviewed, provision shall be made for the presence of at least one of the persons ‒ family members or professionals ‒ who normally take care of him or her and other appropriate measures shall be taken to facilitate the proper course of the conversation.

Art. 232 (RSP Art. 42)

The Investigator shall provide the respective civil or canon lawyers – or other persons chosen by the respondent or the complainant as advisers – with the information that is appropriate in each case regarding the progress of the investigation (cf. RSP Art. 22 §2, and RSP Art. 37 §1). If either party however prefers not to avail of the assistance of another person, the information on the progress of the investigation will be given to him or her directly.

Art. 233 (RSP Art. 43)

The Investigator shall interview the person who was the source of the notitia, the apparent victim (if he or she was not the source), the respondent and any other person who can help clarify the facts to which the information or complaint relates.

Art. 234 (RSP Art. 44)

If the victim is still a minor, the Investigator shall judge whether or not it is appropriate to interview him or her. If he decides to do so, the express consent of the victim's parents or guardians should first be sought and the interview should take place in their presence.

Art. 235 (RSP Art. 45)

Before interviewing the respondent, he or she should be informed about the notitia (cf. RSP Art. 22 §2, and RSP Art. 37 §1), and be given the opportunity to respond. If the respondent so wishes, this reply may be made in writing, either personally or by his civil or canon lawyer, or if he prefers, he can respond verbally in the interview with the Investigator.

Art. 236 (RSP Art. 46)

When interviewing the person under investigation, it is to be borne in mind that he is not obliged – either in that interview, or in any canonical process or procedure which may be opened following the preliminary investigation – to confess to the offence, nor can he be asked to take an oath (cf. Can. 1728 §2 CIC).

Art. 237 (RSP Art. 47)

The Investigator and those interviewed by him or her are to sign a written record of each interview, after establishing that it reflects adequately what was dealt with in the interview. The interviews may be recorded for this purpose. Whoever makes the transcription of the recordings must undertake a commitment to keep the secret of office. The written report is to be signed also by the notary.

Art. 238 (RSP Art. 48)

Mindful that the preliminary investigation is a difficult and trying time for the complainant and the respondent, the Vicar and the members of the Advisory Committee will be vigilant to ensure that it is completed in the shortest possible time and that there are no delays in the interviews and other steps of the investigation, or in the drafting and presentation of its conclusions. The investigation should not ordinarily last more than ninety days (cf. Can. 201 §1 CIC and VELM Art. 14 §1), but the Vicar may extend it for a short specified time, if he prudently considers that some ongoing inquiry can be concluded during this extension which will provide relevant information.

Art. 239 (RSP Art. 49)

The Investigator shall present a report to the Vicar with his conclusions regarding the object of the investigation (cf. Can. 1717 §1 CIC and RSP Art. 39). In the report, he may add whatever suggestions and recommendations he deems appropriate. This report is to be accompanied by the records of the interviews conducted (cf. RSP Art. 47) as well as any other relevant documents (letters, etc.) that may have been submitted during the preliminary investigation.

Art. 240 (RSP Art. 50)

The Vicar shall pass the report to the Advisory Committee, which shall meet without delay to consider it and assess whether the investigation was complete and free from irregularities. If the Committee deems it necessary, it may request the Vicar to arrange for the information submitted to be supplemented. When satisfied, the Advisory Committee will then submit all the documents of the preliminary investigation to the Vicar and add a written statement indicating whether it agrees with the conclusions of the investigation and making any recommendations it deems appropriate to the Vicar. This opinion satisfies the recommendation of Can. 1718 §3 CIC.

Art. 241 (RSP Art. 51)

The Vicar will carefully examine the reports and conclusions sent to him.

§1 If it seems necessary to him, he can refer the case back to the Advisory Committee and to the Investigator for clarification or further inquiry.

§2 Before closing the investigation, he must consider whether it is appropriate for him or the Investigator to settle the question of compensation for harm in accordance with Can. 1718 §4 CIC, always with the consent of the parties (cf. RSP Art. 54 to Art. 57).

§3 If he is satisfied with the results presented to him, he will close the preliminary investigation by a decree of conclusion of the investigation (cf. Can. 48 et seq., Can. 1718 §1 CIC).

Art. 242 (RSP Art. 52)

In the decree of conclusion of the investigation (cf. RSP Art. 51 §3), the Vicar shall have regard to the following considerations:

A. If the preliminary investigation of a possible crime reserved to the Dicastery for the Doctrine of the Faith does not disclose any evidence which would corroborate the possibility that it has been committed, the Vicar is to send the file to the Prelate so that, in addition to informing the Dicastery for the Doctrine of the Faith of the investigation and its result (cf. PSP Art. 25), he can order the file to be kept in the secret archives (cf. Can. 1719, Can. 489 to Can. 490 CIC), unless the Dicastery has decided otherwise. Likewise, the Vicar will send a copy of the decree to the respondent, to the alleged victim in the notitia, or to his or her representatives, and to the Advisory Committee.

B. If the Vicar considers it possible that one of the delicts reserved to the Dicastery for the Doctrine of the Faith has been committed:

1° The file of the investigation will be sent without delay to the Prelate with the personal votum of the Regional Vicar, so that he can present it to the Dicastery (cf. SST, Arts. 16 and 22),

2° The accused cleric will be prohibited from staying in a centre of the Prelature where activities with minors take place, participating in any activity of the Prelature in which minors take part, or carrying out any other pastoral activity; he may exercise his priesthood only within the centre of the Prelature in which he resides,

3° The Vicar shall ensure that any notification already made to the relevant civil authorities in accordance with RSP Art. 31 is supplemented as appropriate, that the decision on the preliminary investigation is notified in writing to the accused cleric (indicating the prohibitions referred to in sub-paragraph 2° above), to the victim or his or her representatives, to the Advisory Committee, the Bishop of the Diocese in which the alleged offence occurred and the Bishop of the Diocese in which the respondent resides.

C. If the preliminary investigation discloses a possible offence not reserved to the Dicastery for the Doctrine of the Faith, the Vicar shall proceed by adopting measures entrusted to him by the legislator (cf. Can. 1718 §1 CIC; RSP Appendix II, and RSP Appendix III, nn. 1-3).

1° The person accused will be prohibited from participating in any activity of the Prelature in which minors take part, as well as from carrying out any other pastoral activity, and may only exercise a ministry within the centre of the Prelature in which he resides.

2° If the Vicar chooses to follow the judicial course, he will order the file on the investigation to be sent to the Promoter of Justice of the Tribunal of the Prelature, for the purposes of Can. 1721 CIC, and he will notify the decree to the person accused in accordance with Can. 55 CIC.

3° Likewise, the Vicar will see to it that any notification already made to the relevant civil authorities in accordance with RSP Art. 31 about the conduct under investigation, which may be a crime under State law, is supplemented as appropriate and that the same decree is communicated to the victim, to the Advisory Committee, to the Bishop of the Diocese in which the reported conduct took place and to the Bishop of the Diocese in which the accused resides, indicating that the person accused is prohibited from participating in any activity of the Prelature in which minors are involved.

D. If the preliminary investigation does not disclose any evidence of an offence but finds it plausible that some form of abuse or other misconduct has taken place, which detracts from the exemplary character proper to a priest or a lay person who wishes to live his or her Christian vocation to the full, the Vicar shall issue a decree closing the investigation in accordance with Can. 1718 §1, 1° CIC, to which he will add a decision applying whatever penal remedies or penances which he considers appropriate in the case (cf. RSP TITLE VII). 

Art. 243 (RSP Art. 53)

Except in the case of alleged delicts reserved to the Dicastery for the Doctrine of the Faith (cf. RSP Art. 52 A-B), if the preliminary investigation finds the complaint or notitia to be unfounded, the Vicar shall issue the decree of conclusion of the investigation (cf. Can. 1718 §1, 1° CIC), in which he will order the file to be kept in the secret archive (cf. Can. 1719, Can. 489 and Can. 490 CIC). He will also send a copy of the decree to the respondent, to the putative victim or to his or her representatives, and to the Advisory Committee. 

Art. 244 (RSP Art. 54)

Abuse or harassment, independently of its penal consequences, may also give rise to an obligation to make reparation or to compensate for the harm caused by the conduct of the offender (cf. Can. 128 CIC). An adversarial process to claim compensation for such damages within the penal process must follow the provisions of Can. 1729 to Can. 1731 CIC incl.

Art. 245 (RSP Art. 55)

Prior to issuing a decree closing a preliminary investigation in which it appears that an offence may have been committed (cf. RSP Art. 52 B-C), consideration should be given – in accordance with Can. 1718 §4 CIC – as to whether it is expedient to seek the consent of the parties, which should be given in writing, to a possible out-of-court alternative to the adversarial process to resolve the question of compensation for harm equitably while avoiding unnecessary trials.

Art. 246 (RSP Art. 56)

The proposal for an equitable solution (cf. RSP Art. 55) must be set out in a document to be signed by the Vicar or his delegate and the parties or their legal representatives. In this document, in addition to accepting the proposed solution, the parties must undertake (cf. Can. 1713 to Can. 1716 CIC incl.) not to pursue the adversarial process mentioned in RSP Art. 54. Care must be taken to ensure that this document is formalised in a manner recognised by civil law and that it excludes any confidentiality clause.

Art. 247 (RSP Art. 57)

The Vicar must take care that the parties clearly understand that neither his request for consent to act, nor his equitable solution to the question of compensation for harm, involves or implies in any way an out-of-court settlement to avoid a penal process or procedure in the case, which will continue to run its course in any event, in accordance with the law.

Art. 248 (RSP Appendix I, B)

Can. 1717 §1 CIC

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.

Although it's true in general, as indicated by Can. 1717 CIC that "it is a positive condition for initiating the investigation that such evidence as is inferred from the notitia received leads to the consideration that the commission of a crime is probable" (Josemaría Sanchís, Commentary to c. 1717 in Code of Canon Law, Exegetic Commentary, EUNSA), it should not be forgotten that considering the delicacy of the matter (it must be borne in mind that the offences against the sixth commandment of the Decalogue are very rarely committed before witnesses) the current guidance is that the judgement of lack of plausibility (which could lead to the omission of the previous investigation) will be issued only in the event of the manifest impossibility of the crime (cfr. Linee guida per la protezione dei minori e delle persone vulnerabili, Vicariato della Citta del Vaticano, 26 March 2019, F-6).

The purpose of the preliminary investigation is to see whether the plausibility of the reported facts is confirmed. However, it will be in the judicial or extrajudicial process that may follow the preliminary investigation where one obtains the moral certainty necessary to impose a penalty. Therefore, at the end of the preliminary investigation, the accused is not yet found guilty. If the accused has confessed, this is not a substitute for the established procedure.

Art. 249 (RSP Appendix I, C)

Can. 1717 §1 CIC

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.

What is imputability? When are the reported facts considered attributable to the accused?

Imputability is the quality of an action or omission that makes it attributable to its author in that he or she has intentionally or negligently violated the law. In the terminology of criminal law – also in the penal canon law – the intentional violation of the law is called wilful misconduct and negligent violation of the law is called culpable misconduct. These are the two forms of imputability described in the Code of Canon Law.

Can. 1321 CIC

§1. Any person is considered innocent until the contrary is proved. 

§2. No one can be punished unless the commission by him or her of an external violation of a law or precept is gravely imputable by reason of malice or of culpability.

§3. A person who deliberately violated a law or precept is bound by the penalty prescribed in that law or precept. If, however, the violation was due to the omission of due diligence, the person is not punished unless the law or precept provides otherwise.

§4. Where there has been an external violation, imputability is presumed, unless it appears otherwise.

Art. 250 (RSP Appendix I, D)

This Article (cf. RSP Appendix I, A-D) includes several legislative texts of particular importance in the preliminary investigation of allegations or sexual abuse information, with some brief comments.

JOSEMARÍA SANCHÍS, Comentario al c. 1717 in Código de Derecho Canónico, Comentario Exegético, EUNSA

Any person has the liberty to report a crime, "complaint" being understood in a broad sense as the act by which notification of a crime is given to the authorities. The denunciation of crimes is to be considered not only a power but also an obligation, moral or juridical, depending on the case (...) However, the presentation of the complaint does not presume the initiation of criminal action - which is the sole responsibility of the Promoter of Justice by order of the Ordinary (cfr. Can. 1430 and Can. 1721 §1 CIC), and never the injured party, nor does it carry with it the obligation to demonstrate the guilt of the accused.

The purpose of the criminal action is to open a process to declare or impose a penalty. The possibility of exercising it is extinguished by the passage of time. This is called prescription, which is regulated by law. 

In the penal process opened as a consequence of the criminal action exercised by the Promoter of Justice, the injured party can also prosecute an adversarial or penal action to obtain compensation for the damage he has suffered as a consequence of the crime (cfr. Can. 1596 CIC and Can. 1729 §1 CIC).

Motu proprio Sacramentorum sanctitatis tutela April 30, 2001, with the revision of May 21, 2010, further revised by the Rescriptum ex Audientia of 11 October 2021 and published on 7 December 2021 as the “Norms Regarding Delicts Reserved to the [Dicastery] for the Doctrine of the Faith”:

SST Article 8 

§1 Criminal action concerning delicts reserved to the [Dicastery] for the Doctrine of the Faith is extinguished by prescription after twenty years. 

§2 Prescription runs according to the norm of Can. 1362 §2 CIC and CCEO, Can. 1152 §3. However, in the case of the delict mentioned in Art. 6, 1°, prescription begins on the day the minor reaches the age of eighteen. 

§3 The [Dicastery] for the Doctrine of the Faith has the right to derogate from prescription for all individual cases of reserved delicts, even if they concern delicts committed prior to the coming into force of the present Norms.

Time limits in Irish criminal prosecutions

Summary offences. In the case of a summary offence (an offence tried in the District Court before a judge without a jury) the Gardaí must make a complaint to the District Court within 6 months of the offence being committed. These offences include most Road Traffic Offences like speeding, illegal parking and fixed charge notice offences.

Indictable offences. Section 7 of the Criminal Justice Act 1951 (as amended by Section 177 of the Criminal Justice Act 2006) states that the time limits that are provided for summary offences do not apply to an indictable offence that can be tried summarily (an indictable offence is tried by a judge and jury in the Circuit Court or the Central Criminal Court). Technically, therefore, there is no time limit for the commencement of proceedings in the case of an indictable offence unless specific legislation provides one.

However, if there is an excessively long delay in prosecuting an offence, the judge may decide not to hear the case. In making the decision, the judge considers whether the delay has reduced the chances of the accused receiving a fair trial, for example, if the delay means that key witnesses are no longer available to give evidence or if the delay could have affected their memory of what happened.

Time limits in Northern Irish criminal prosecutions

Criminal proceedings in Northern Ireland are usually commenced by either the PSNI charging the accused or by the Public Prosecution Service NI (PPSNI) making a complaint to a lay magistrate under Article 20 of The Magistrates' Courts (Northern Ireland) Order 1981. 

Summary offences. A complaint for summary offences (which are triable only in a Magistrates' Court) must be made within six months from the time when the offence was committed, otherwise the Magistrates’ Court has no jurisdiction to hear the matter. Such offences include common assault, harassment and most driving offences. (Article 19 of The Magistrates' Courts (Northern Ireland) Order 1981).

Indictable offences. For all other offences, there is no statutory time limit. The police have no set time constraint on their investigations, but where there is a delay to a prosecution and there is fault on the part of the police, which leads to prejudice, then the proceedings may be subject to an application to stay for ‘abuse of process’. Moreover, the right to have a trial within a reasonable time is enshrined in Article 6 of the European Convention on Human Rights ('the right to a fair trial'). This is a complicated area of law and there are competing issues of public interest.

Art. 251 (RSP Appendix II)

§1 After receiving the Prelate's approval to use the extra-judicial administrative procedure, the Vicar without delay will summon the defendant with his advocate (cfr. Can. 1509 CIC) – warning him that it is expedient for him to appear with his advocate (cfr. Can. 1483 CIC) – to notify him, in accordance with Can. 55 CIC, of the decree of conclusion of the preliminary investigation (cfr. Article 52), of the consent of the Prelate to the extra-judicial procedure, of the formal accusation and of the evidence, in accordance with Can. 1720, 1° CIC.

§2 The Vicar or his delegate, the defendant and the notary must be present at the arraignment. The notary is responsible for drawing up the minutes, which are signed by all those present at the end of the hearing.

§3 The Vicar or the notary shall read to the accused the indictment and the list of the items of evidence on which it is based. The presentation shall be supplemented orally or in writing as necessary to ensure that the accused is given the possibility to defend himself adequately against all aspects of the charge.

§4 If the defendant, duly summoned, does not appear at the session, the procedure will be carried out following the indications of Can. 1592 to Can. 1593 CIC.

§5 In the same session, the Vicar (cfr. Can. 1342 §3 CIC) may notify the accused of the possible precautionary measures which he has decreed, if he considers them necessary for one of the purposes foreseen in Can. 1722 CIC.

§6 At the end of the session, before signing the minutes, the Vicar is to fix a date and time for the next session, giving the accused sufficient time to prepare his defence and to present the proofs which he considers opportune, always bearing in mind Can. 1728 §2 CIC.

§7 If the proposed evidence includes testimonial or expert statements, the Vicar shall summon by decree each proposed witness or expert, notifying them of the summons in accordance with Can. 1509 CIC.

§8 The Vicar, the defendant with his advocate, and at least one notary or two witnesses must be present at the hearing for the presentation of the pleadings and proofs of the defence. The Vicar shall order the session in the manner which he judges prudent, following in what is useful the indications of Can. 1526 to Can. 1586 CIC incl.

§9 The Vicar shall fix dates for any subsequent hearings that may be necessary to complete the presentation of evidence within the shortest possible time, avoiding unnecessary delays but without restricting the rights of the defence.

§10 Once the evidence has been completed, the conclusions will be briefly presented, taking into account the provisions of Can. 1725 CIC.

§11 The notary, or in his absence one of the witnesses, is responsible for drawing up the minutes of all the hearings, which are signed by all those present at the bottom of the document.

§12 Once the presentation of the evidence has been completed, the Vicar will meet as soon as possible with the Advisory Committee to accurately weigh all of the allegations made and proofs adduced in the hearings and investigations that have been carried out (cfr. Can. 1720, 2° CIC). The Can. 1526 to Can. 1586 CIC incl. can serve as a guideline for the evaluation of the evidence.

§13 If, after this evaluation, which should not be unnecessarily prolonged, the Vicar reaches certainty (cf. Can. 1608, in virtue of Can. 1342 §3 CIC) about the abuse and its imputability (cf. Can. 1720, 3° CIC), after verifying that the criminal action has not been extinguished by prescription (cf. Can. 1362 CIC), he must issue the decree of condemnation.

§14 If, on the other hand, it is not possible to reach this moral certainty or if the innocence of the accused is proven (cfr. Can. 1726 CIC), the Vicar must issue a reasoned decree of acquittal, having regard, where appropriate, to the possibility of using the penal remedies and penances provided for by law (cfr. Can. 1339 to Can. 1340 CIC).

§15 This latter provision (no. 14) also applies in the case referred to in no. 13 if the criminal action has been extinguished by prescription (cfr. Can. 1362 CIC).

§16 In the penal decree of condemnation the Vicar must explain the reasons for the certainty reached, that is to say, what facts of the accusation he considers proven in the proceedings and what juridical classification they warrant; what relevant circumstances he considers also proven; for what reasons he does not consider the defences of the convicted person with regard to those facts and circumstances to be valid; and what prescriptions of law are applicable to the case in accordance with the classification indicated. The canonical rules on judgement can serve as a guide to the formal structure of this decree, especially those contained in Can. 1608 and Can. 1611 to Can. 1612 CIC.

§17 In addition, the penalty to be imposed on the convicted person must be expressed in a precise and well-defined manner. In deciding on this matter, the Vicar must follow the norms of Can. 1342 to Can. 1350 CIC incl.

§18 The penal decree must be dated, signed and countersigned in the usual way (cf. Can. 474 CIC). It must be served on the convicted person within fifteen days, in accordance with Can. 55 to Can. 56 CIC.

§19 The decree is to indicate that a hierarchical recourse against it, to the Prelate, is open to the defendant in accordance with Can. 1732 to Can. 1739 CIC incl., and that a recourse has a suspensive effect, pending its resolution (cf. Can. 1353 CIC).

PART C

Local Safeguarding Policy – Ireland

C-I | Ecclesiastical

See NBSCCCI Guidance on Outcomes of Civil & Preliminary Investigations