Summary justice? What is an ‘extrajudicial process?’

Fewer procedural norms, but a higher bar of proof

The news broke this week that former apostolic nuncio Archbishop Carlo Maria Vigano is facing formal charges of schism — the refusal of submission to the Roman Pontiff or of communion with the members of the Church subject to him.

Vigano was summoned by decree to appear before the Dicastery for the Doctrine of the Faith on June 20, or to send his canon lawyer to appear on his behalf, so that he could see the case against him and offer his defense.

After the archbishop posted his summons online — taking the opportunity to call the Pope and Vatican Council II “cancer” as he did so — many noted that he is being prosecuted via an “extrajudicial penal process,” a term which has caused some confusion.

So, what is an “extrajudicial process” in canon law, and what happens next for Archbishop Vigano?

The Pillar explains.

Whose case is it anyway?

While it can often appear that there is no clear criteria for how or when the Church investigates canonical crimes, there is actually a clear set of steps that have to be followed, according to the Church’s canon law. 

The process begins “whenever an ordinary has knowledge, which at least seems true, of a delict,” or canonical crime, having been committed. 

The “ordinary” refers to the person (usually a bishop) who has jurisdiction over the people or places and supposed crimes involved. 

So, in the case of an archbishop — a former nuncio no less — is suspected of committing an act of schism, whose responsibility is it?

The short answer is that it’s the pope’s responsibility. 

According to canon law, it is solely the right of the Roman Pontiff himself to judge any cases involving all penal matters involving bishops.

In practice, though, the pope delegates specific cases to different dicasteries of the Roman curia, as they arise.

In Vigano’s case, it the responsibility of the Dicastery for the Doctrine of the Faith to investigate the charges against him, since the three crimes against the faith — heresy, apostacy, and schism — are under its jurisdiction, according to its own special law outlining the processes for dealing with major canonical crimes, Sacromentorum sanctitatis tutela.

In addition, SST gives the DDF the authority to judge cases of these crimes involving bishops by mandate of the pope.

Discreet inquiries 

Once there is a reason “which at least seems true” to think that a crime has been committed, the responsible authority is supposed to initiate a preliminary investigation, which comes with a whole list of legal requirements and restrictions — including that it is conducted with sufficient discretion that no one’s good name is endangered.

The investigation is supposed to look at not just the facts of the matter, but also the person’s circumstances and imputability (the extent to which they can be considered responsible for what they did).

But the point of a preliminary investigation isn’t to determine that something definitely happened, or that a person is definitely guilty of having committed a delict — it is only to determine if there’s enough information and evidence out there to move on to some kind of formal canonical prosecution.

And sometimes, the basic grounds for proceeding are so obvious or overwhelming that a preliminary investigation would be, in the words of the law, “entirely superfluous,” in which case the competent authority can dispense with it entirely.

In Vigano’s case, his numerous public statements demanding Pope Francis’ resignation, accusing the pope of heresy, and calling into question his legitimacy in office would seem to more than meet the standard for dispensing with an investigation. 

In fact, we know the DDF decided this was the case, because the decree of citation says so.

How obvious is it?

Once there are reasonable grounds to proceed, the competent authority has a decision to make.

The competent authority can initiate a canonical “judicial process,” which means a full trial, with the citation of witnesses, rounds of submissions of evidence by the prosecution and defense, exchanges of argumentation by lawyers, before the matter is considered by a judge. 

This is the presumption of the law, since the default presumption in canonical criminal proceedings is to favor the right of defense and to ensure the accused has every necessary and reasonable opportunity to defend themselves.

The other alternative is for the case to “proceed by way of extrajudicial decree,” also called an “extrajudicial process” or a “penal administrative process.” 

Because the presumption of the law is for a full trial, there has to be a clear rationale for choosing the administrative course.

At a minimum, this would require a reasonable determination that all the relevant evidence has either been gathered in the course of the preliminary investigation or is already a matter of public record. 

Again, in Vignao’s case, the substance of the charges against him rely on his long history of public statements regarding the legitimacy of the pope and the Second Vatican Council. 

Given that Vigano has published these under his own name, and circulated them himself, there’s no obvious reason to rely on witness testimony or the need to subpoena documents for the prosecution or defense.

‘Extrajudicial,’ not ‘extralegal’

The important thing to understand about a penal administrative process is that while it is procedurally abbreviated, it does not grant a license to dole out summary justice.

If the competent authority is able to declare that sufficient evidence has been gathered that an extrajudicial process can be employed, it does not mean that he can proceed immediately to declaring a guilty finding or imposing penalties.

In fact, before decreeing the opening of an extrajudicial process, the competent authority has to hear two expert opinions — either from judges or other canonical specialists — to make sure the decision is legitimate.

Once that is done, the right of defense remains intact and every legal protection still has to be afforded to the accused. 

This includes the right to proper legal representation, which the defendant is free to choose for themselves or, if they decline to do so, the authority must appoint someone to act on their behalf, as the DDF has notified Vigano it is prepared to do. 

The purpose of this is to make sure that, even if a defendant is totally uncooperative and refuses to play any part in the process, there is still someone representing their interests and arguing the case for their defense.

And, while several rounds of procedure present in a full trial are omitted in an administrative process, this doesn’t mean the accused is denied the right to inspect the accusations, evidence, and arguments against them, or to present their own proofs in their defense. 

On the contrary, the competent authority is required by law to notify the defendant and give them a chance to inspect and answer the case against them — it was for this purpose that Vigano was summoned to the DDF on Thursday, though he has said he declined the oppotunity.

While the law allows the ordinary to proceed if “the accused neglected to appear after being properly summoned,” in Vigano’s case the DDF appears to be taking extra measures to ensure his rights are protected by making clear they will appoint someone to argue on his behalf if he refuses to do so.

Crucially, even once an extrajudicial process has begun, it has to be halted immediately if new evidence emerges that challenges the presumptions necessary to hold an administrative process in the first place, and a full trial is to be convened instead.

And, even when the extrajudicial process proceeds to a conclusion, a decree of guilt can only be issued and penalties imposed if the crime “is certainly established” as a fact — a higher bar to clear for a finding of guilt than is required in a full judicial process, in which a minority of members of a panel of judges could even dissent from the verdict.

While the extrajudicial process is meant to provide a procedurally expedited process when the evidence to be considered is overwhelming and readily available, it can still take several months, or even longer — and the accused has the right to appeal. 

In Vigano’s case, since the DDF is acting under special papal mandate and all cases against bishops are reserved to the Roman Pontiff, any appeal by the accused or prosecution would be heard by Pope Francis personally.

The former cardinal Theodore McCarrick was prosecuted by an extrajudicial process after a preliminary investigation returned a large amount of evidence and testimony in June of 2018.

That process concluded in a finding of guilt in January of 2019, but the sentence of laicization was not declared and imposed until the following month, after Pope Francis rejected McCarrick’s legal appeal.