§ 145. Church Courts

Church legislation sets forth, in sufficient detail, what courts are to exist in the Church, and what is the competence of these various courts. Canon 6 of the Second Ecumenical Council prescribes the course of judgment in church matters, and canon 9 of the Fourth Ecumenical Council prescribes the same for matters of a private character among clergy. Balsamon, in his commentary on this latter canon, on the basis of the practice existing in the twelfth century with regard to judgment, says: “If a cleric is to bring suit against another cleric, or against a bishop, or against a metropolitan, he must, in accordance with the laws, submit his complaint before that court to which the accused is subject, for clerics and monks must appear before the court of the local bishop, bishops before the court of the metropolitan, and metropolitans before the court of the patriarch.”[1] Here we are clearly and distinctly presented with three judicial instances: the episcopal, the metropolitan, and the patriarchal. From other sources we learn that, below the episcopal, there existed yet another judicial instance for small districts within the dioceses, which, in today’s church-administrative terminology among us, would be called the archpriestly (protopresbyteral) instance.[2] In this way, in the canonical sources we find four judicial instances: the three mentioned, and the archpriestly.

By the canonical basis of the constitution of the Orthodox Church, every power within her is exercised conciliarly (§. 57), and consequently so too is the judicial power. Subject to the personal judgment of the bishop are only such offences of clergy as touch chiefly their conscience, and which are not attended by public scandal, and which as such can be corrected by archpastoral counsel and admonition on the part of the bishop concerned. The bishop exercises this personal judgment of his without any formality, and his judgment is not subject to review by any further court.[3]

I. The lowest instance of church or spiritual judicature is constituted by the archpriestly court. This court is not independent, but is exercised by delegation of the diocesan bishop. The origin of this court dates back to the first centuries of the Church.[4] When chorepiscopoi were established as an independent institution in the church constitution, these chorepiscopoi exercised this judicature. After the independence of the chorepiscopoi was abolished by canon 57 of the Council of Laodicea, and they were replaced by periodeutai, the judicial power which the former had exercised passed to the periodeutai;[5] and when afterward the district archpriests permanently took over the office of periodeutes (§. 118), then all the official rights of the periodeutes passed to the archpriests. By the relation of dependence of the chorepiscopoi, and afterward of the periodeutai and district archpriests, upon the diocesan bishop, the relation of their judicial power to the judicial power of the diocesan bishops is likewise determined.

To the archpriestly court belongs, canonically, the examination of various disputes that arise among clergy in matters of service, and likewise complaints which church communities or individual laymen may chance to bring against clergy concerning their conduct of service. If the archpriest succeeds in settling these disputes, he then reports this, for information, in his ordinary report to the diocesan authority; if he does not succeed, he submits the matter to that same authority for further investigation and judgment.[6]

II. The episcopal court has always, in the Church, been composed, together with the bishop, of elected members from the diocesan clergy.[7] Since the archpriestly court is not, by the canons, an independent court but only a delegated one, the first instance in judicial matters within the competence of the church authority is constituted by this episcopal court, to which all are bound to submit who have some disputed matter over which the church authority is competent, under pain of severe penalty should they disregard it.[8]

In the sources of church law, the matters on which the episcopal court, in the older period, deliberated and pronounced judgment are set out in detail.[9] Today this court is constituted by the diocesan consistories, and in the first instance they judge those matters which we mentioned at the close of the preceding paragraph.[10]

III. The metropolitan court, of which mention is made in the canonical sources, is exercised at the provincial (diocesan or metropolitan) councils (§. 89). The provincial council is either a court of first instance, or else a court of second instance. As a first instance it holds good in disputes between diocesan bishops, and then in respect of complaints which clergy or laymen may chance to bring against a diocesan bishop; as a second instance, that is, as an appellate court, the provincial council holds good in those matters on which the episcopal (consistorial) court has pronounced its judgment.[11]

Today this court is exercised by the corresponding supreme central bodies in the autocephalous local churches concerned (§. 91). Among the existing synodal statutes we find the subjects of the judicial competence of the metropolitan court precisely arranged in the statute of the Bukovina-Dalmatian metropolitanate. By that statute the metropolitan court is a court of first instance: a) in disputes that occur generally among diocesan bishops, b) in disputes of competence that arise, in the sphere of church administration and church judicature, between the diocesan authority and some subordinate organic element of it—a monas[…]

of this, today in Greece, if a canonical offence of a bishop is to be judged, all the bishops of the kingdom are convened at the metropolitan see, and, having constituted a general council, undertake the investigation and then pronounce judgment upon the accused bishop.[12]

IV. The metropolitan courts were the final judicial instance in the whole Church for as long as all metropolitans, as regards internal administration, were independent in their own metropolitanates. When the patriarchates were established, only some metropolitans retained their independence, while the majority of the other metropolitanates entered into the composition of the newly founded patriarchates (§. 86). As a result of this change, just as the metropolitan councils of these subordinate metropolitanates passed into a corresponding dependence upon the patriarchal councils in administrative relations, so too did the judicature which the latter had exercised. In this way the patriarchal court arose, as a new judicial instance for the whole extent of the church provinces of the patriarchate concerned. The basis of this patriarchal court we find in those canonical sources mentioned at the beginning of this paragraph, and likewise in canon 36 of the Council in Trullo.

In the exercise of church judicature, the patriarchal court, according to the constituent organic parts of the patriarchates themselves, is a court of first, second, or third instance. As a first instance this court acts in all complaints that anyone may bring against a metropolitan within the extent of the patriarchate concerned, then in complaints among metropolitans and complaints of metropolitans against their clergy or against diocesan bishops, and finally when a patriarch is to be judged. As a second instance the same court acts in complaints against the judgments of the metropolitan courts; and as the third and final instance the patriarchal court pronounces final decision in all matters that have been argued before the lower courts and which are submitted to it for final judgment.[13] — This competence of the patriarchal court, which the sources of church law present to us, holds good even today in the four Eastern patriarchates, with the corresponding changes, according to the circumstances of the time.[14]

3. Church-Judicial Procedure.