§ 147. B) Present-Day Judicial Procedure

In the four Eastern patriarchates, as we mentioned in the preceding paragraphs, the competence of the church courts extends both to the ecclesiastical and to the civil affairs of Orthodox Christians, and for the argument of all these matters there holds good, in the main, that same judicial procedure that held good in the last period of the Byzantine empire. In all the other autocephalous local Orthodox churches, civil jurisdiction has passed to the secular courts. What today falls within the competence of the church courts we have already stated.[1] For the argument of these matters there exists an established judicial procedure.[2] It is either summary or formal.

Summary procedure, as the word itself indicates, is brief, without many formalities, and concludes quickly. In this procedure, the plaintiff submits his complaint with evidence to the church court; the court then forwards this complaint to the accused, so that he may answer it within a short term, and when the appointed term expires, the accused is bound to submit his answer to the court. When this has been done, the court clerk, on the appointed day, reads to the plaintiff the answer of the accused, and thereafter enters into the record both the plaintiff’s counter-answer and the further statement of the accused. Once the parties have been sufficiently heard and everything is prepared so that a final judgment may be rendered, the parties then leave the courtroom, and the members of the court, upon mature deliberation and agreement, pronounce the judgment, which the court clerk immediately enters into the record. The parties are then again summoned before the court and the judgment is read to them there, which is then immediately executed.[3]

Formal procedure differs from this summary procedure. This formal procedure is different when it concerns offences of clergy, and again different for matrimonial suits. We shall mention the first, then the second.

I. As regards offences of clergy, judicial procedure may begin either by a complaint lodged with the consistory in writing, or entered into the record, or else by official notice on the part of the church authority itself concerning some offence. Before the investigation of the offence is undertaken, the consistory requires a statement from the accused. After the statement has been obtained, the plaintiff, the accused, and witnesses are heard; if necessary, they are also confronted with one another, all the circumstances of the matter are examined, and all the relevant evidence is gathered. The accused has the right to be heard in detail, not only concerning everything of which he is accused, but also concerning what he may adduce in his own defence, and to him belongs the last word. If, according to the nature of the matter, the consistory finds that the investigation should also be conducted on the spot, it then authorizes a trusted person to do so and to submit a detailed report to it. And if the offence is grave, carrying a greater church penalty, the consistory then appoints a commission of at least three persons, who are to conduct a complete investigation; if the consistory does not find the investigation submitted to it complete, it orders a further investigation, until it seems to have exact knowledge of everything. Should the investigation be unjustifiably delayed, the accused has the right to complain to the diocesan bishop. During the course of the investigation, if the complaint is for some graver offence, the bishop has the authority to suspend the accused clergyman from performing the sacred rites until judgment is pronounced. When the investigation has been fully completed and everything relevant to the matter has been gathered, the consistory proceeds to judgment and pronounces its verdict, either finding the clergyman concerned guilty, or acquitting him of the charge. In the former case, the consistory transmits its judgment, with an indication of the penalty, to the condemned party by means of the authority immediately superior to him. Whoever is dissatisfied with the judgment may lodge an appeal to a higher church court within the time set for this by law, and when the prescribed time has elapsed, he no longer has the right to appeal to a higher court, and the consistory’s judgment is then executed; if he appeals in time, execution of the judgment is then suspended until a decision arrives from the higher court.[4]

II. In matrimonial suits, the consistories proceed either upon the corresponding complaint or by their official duty. A petition for divorce is submitted by the party concerned, husband or wife, to the consistory, either directly or through his or her parish priest. In this latter case, the parish priest of his own accord, and in the former case by order of the consistory, endeavours to reconcile the estranged spouses, employing for this all such means as he finds necessary, either of himself or according to instructions received from the consistory. The parish priest must do this three times, at intervals of the time prescribed by law. If he does not succeed in persuading the estranged spouses not to dissolve the marriage, he then, with a report of everything he has done, refers the spouses to the district archpriest, so that he may attempt their reconciliation. That entire examination and effort proceeds orally; and if one party should refuse to come at the corresponding summons, he or she may be compelled to do so by the civil authority. If the archpriest, too, fails to reconcile the estranged spouses, the consistory then takes up the matter, and, after it too attempts the same reconciliation and does not succeed, the formal suit then begins. The defender of the marriage and of its indissolubility is a particular person in the consistory, who as such has the leading role in a matrimonial suit (the consistorial fiscal/procurator). Both the plaintiff and the accused party must appear personally before the consistory and answer, and a representative is permitted only in case of illness of one party, or for some other important reasons, and only by the express permission of that same consistory. If the place of residence of the accused party is not known, the consistory will summon her (or him) by public notice, which will be published three times in the newspapers, and in that same notice the time by which she must appear before the court will be set; should the public notice remain without result, an official representative is appointed, with whom the matrimonial suit will then be concluded. According to the difference of the grounds on which divorce is sought, the means employed by the consistory to ascertain the truth of the matter likewise differ. In the course of the suit, procedure follows, in the main, the prescriptions for judicial procedure in civil suits. The accused party is summoned to answer the charges brought against her by the plaintiff; then the plaintiff is summoned to state what he has to say against the accused’s answer, and again the latter to state her justifications, and so on, until it seems to the court that the examination of the litigating parties is sufficient. All charges, evidence and justifications are subjected to detailed investigation by the court, for which purpose experts and witnesses are summoned, various documents and other instruments relating to the main matter are examined, and everything necessary for ascertaining the truth is investigated. Witnesses who are in the locality are examined personally before the court, after the prescribed oath; those who are not in the locality are examined before the competent church or civil courts on such points as the consistory indicates to them. An admission of guilt by the accused party (an admission which has weight in the secular courts) is not accepted in matrimonial suits unless it agrees with the other circumstances and is corroborated by evidence. When it appears to the consistory that everything has been made clear, it once more communicates to the parties everything that has been ascertained through the court proceedings, and then proceeds to pronounce judgment. After the judgment has been announced to the parties, if one or the other party is not satisfied with the judgment rendered, she or he may appeal to a higher court (the appellate consistory), and this within a precisely fixed term, since otherwise the appeal is no longer accepted, and the consistorial judgment is then executed.[5]

III. Matrimonial suits fall within the competence of the church court (the consistory), as indeed they must throughout the Orthodox Church, except in those local churches only where heterodox—or more precisely, anti-Church—influence has gained the upper hand over the principles of the Christian Church, and where the powers that be no longer recognize marriage as a mystery, but only as a civil contract. Thus in the Kingdom of Romania, by the will of Prince Cuza, carried away by Western unbelief, obligatory civil marriage was introduced in 1864, and all matrimonial suits accordingly fall within the competence of the civil court. The same occurred in Hungary (except Croatia and Slavonia) in 1894. In Austria there is no obligatory civil marriage, but there too the Church’s jurisdiction in matrimonial affairs was taken away in 1868, and all matrimonial suits were transferred to the competence of the civil courts, and a procedure for this was established, prescribed on the basis of the Josephine Marriage Patent (1783), by court decree of 23 August 1819. And in the Kingdom of Greece, during the regency of King Otto, and under the influence of the Bavarian Germans, civil marriage was introduced in 1835, and all matrimonial suits were handed over for resolution to the civil courts. This was modified in 1852 to the extent that matrimonial suits in Greece are now conducted first before the church court, and when a final resolution is not reached in that court, the suit concerned then passes to the civil court, which pronounces the final judgment.

In those countries where matrimonial suits do not fall within the competence of the church court (the consistory), but of the civil court, the corresponding judicial procedure in general consists in the following.

A husband and wife, even if both are in complete agreement, can in no way dissolve the marriage bond of their own authority. Every matrimonial suit must be investigated officially, before that territorial court of first instance in whose district the spouses most recently resided. That same court appoints a special person to defend the marriage, to be exactly informed of all the circumstances alleged for the divorce, and to study those circumstances diligently, and to judge how well-founded the complaint is and to what extent it rests on reliable evidence, and also whether there are any objections or doubts regarding that complaint; and on all this a reasoned opinion must be submitted to the court. Should the defender neglect anything in this, it is the duty of the court to alert him to it. It is always the court’s endeavour to preserve the marriage bond, and accordingly the stated ground for divorce must be fully proven; nor does the concurring admission of husband and wife have the force of proof here, nor is any oath of theirs accepted in this regard. Before the court begins its work on the suit brought, it is the duty of the parish priest concerned to admonish the estranged spouses regarding the harmful consequences of divorce, and he must give this admonition three times, at intervals of the time prescribed by law. Should the parish priest’s efforts remain unsuccessful, he then submits to the court a record of what he has done, and the court begins its own proceedings. And above all, if the court finds that there is no justified ground for the complaint, it will summon the plaintiff himself and will endeavour, by suitable admonitions, if possible, to induce him voluntarily to abandon the complaint; should this not succeed, proceedings then continue in accordance with the prescriptions of the law.

The judge, that is, must summon before him personally the husband and wife, as well as the defender of the marriage, and communicate to the latter all the relevant documents pertaining to the matter; in doing so he must allow the parties, each in due order, to state what she or he has to say concerning the matter, and each of them to submit the necessary documents and instruments, if such documents and instruments are not already before the court; he will thereafter examine all witnesses and experts, so that in this way all the circumstances of the matter itself may be fully clarified; whereby he must not only bring fully to light all the grounds alleged for the divorce, but must also strictly scrutinize them, and must in principle defend the marriage against every wilful violation of it; and in general the judge must conduct the proceedings in such a way that, regardless of the parties’ statements, the grounds on which the court will have to pronounce its judgment are clearly and manifestly shown.

As regards the examination of witnesses and experts, the judge must adhere precisely to the general prescriptions for courts, insofar as those prescriptions have direct bearing upon the evidentiary force of the statements concerned. The questions to be put to the witnesses the judge is himself to compose, but in doing so he will make suitable use also of any observations the parties happen to make. If some witnesses are not in the place where the proceedings are held, but must nevertheless be examined, the competent court of the place where those witnesses reside is officially requested to examine them there. Should the accused fail to respond to the court’s summons, he is to be compelled thereto by the appropriate coercive means, and only when this proves impossible—after he has first been warned of the consequences of his defiance—will judgment be pronounced against him. If the plaintiff declares that the accused is abroad, or that his whereabouts are unknown, and this is likewise unknown to the court to which the accused is subject, a special guardian will be appointed for him at his own expense and responsibility, and this will be made known to him by means of a public notice in the newspapers, so that he may communicate whatever he has to say to his appointed representative, or report to the court some other representative. But should it be proven that the plaintiff deliberately concealed the accused’s whereabouts, the entire proceeding is in such a case voided, and the plaintiff is bound to pay all that was expended for the printing of the notice and for the appointment of the guardian, and is besides subjected to the corresponding penalty.

After the completion of the judicial procedure, the suit is resolved by judgment. If the judgment goes against divorce, that is, that the marriage remains in force, the legal means and appeals generally permitted may be employed against that judgment. If, however, the judgment has pronounced divorce, then the appointed defender of the marriage, without any further investigation, will lodge an appeal, and, after the exchange of the appellate documents, will demand that all the documents be forwarded to the higher court through official channels.

When divorce is pronounced in the final instance as well, the court concerned will officially notify that authority which is to take care of the accuracy of the marriage register, so that this divorce be noted in the corresponding register at the place where the marriage of the now-divorced spouses had been recorded.

4. Church Penal Law.