§ 154. c) The Imposition of Penalties

In imposing penalties there are several canonical prescriptions to which church courts are bound to pay heed, so that their judgment may correspond to the spirit of Christianity and be free of anything that might cast a shadow of suspicion upon its fairness. If the secular judge, in order to be able to render a fair judgment, must give careful attention to the motives that led someone to an offence and must examine all the circumstances under which the offence was committed, then the spiritual judge, who is called to execute justice in the church in God’s name, is all the more bound to give heed to this.

1. The motive of the offence—this is the chief thing that must be taken into account in imposing the penalty. The worse the motive, and the more it shows that someone deliberately intended to commit some offence, the heavier the penalty must be; and conversely, if it is proven that someone, through ignorance of the law, unintentionally or without forethought, committed the offence, then the penalty must be milder and the judge more lenient in his sentence.[1] Likewise the causes for which an offence was committed must be taken into account; and if someone was compelled by physical force to do something contrary to the laws of the church, in such a case the canons absolve the person concerned of all responsibility;[2] but where it is only moral force that is at issue, the canons do not absolve him of that responsibility, since a Christian is not bound to obey anyone’s command when he is required by it to do something that is contrary to God’s law or church law.[3] Of great weight in imposing the penalty is also what the life of the person concerned was like before he committed some offence; and if his life had been exemplary, then the offence committed may be interpreted as due to the chance circumstances that occasioned it, and the penalty accordingly milder; and conversely, if it is proven that the person concerned had lived dissolutely, that the offence he committed is nothing other than a product of his general moral corruption, then the penalty must be more severe, and must aim both to punish the offence itself and to forestall a new offence.[4]

2. In imposing the penalty there always appear certain circumstances that either mitigate the guilt or aggravate it. The guilt will be mitigated: a) if the person concerned himself confesses and acknowledges it before the judge exposes him,[5] and b) if, after the offence, the offender of his own personal accord does some good that is the opposite of the offence committed, and thereby, so to speak, effaces it himself.[6] The guilt will be aggravated when it is observed in the offender that he is obstinate in evil and unwilling to repent of what he has done,[7] further, when the offence, by itself and by its consequences, brings harm to the general life of the church and threatens to infect many other members of the church,[8] and finally, when the offence was committed by such a person as, by his position in the church, ought to serve others as a model of virtue and an example of the exact observance of the law.[9]

3. According to the ethical purpose that the church’s penal law pursues, the canons prescribe that every penalty which a church court imposes on someone must have general force and binding effect for the whole church; and thus, whoever has committed some offence and has been given the corresponding penalty for that offence in one diocese, that penalty must be respected by all the other dioceses of the Orthodox world, and no local church may receive into its communion a clergyman who has been lawfully excommunicated or deposed by a lawful court in another local church.[10] For this reason, in church-judicial practice we find that the judgments of one church against greater offences were communicated to all the churches, so that the same judgment might be known to all, and so that they might act toward the offenders concerned in a manner consistent with that judgment. This was done, and must be done, through the respective letters that one bishop sends to the other bishops, or through the circular letters that the council of one church sends to all the churches.[11] For this same reason it has been canonically established that the bishop concerned issue special written certificates to all clergy, and likewise to laypeople, who go into the territory of another bishop, in which certificates it is confirmed that the person concerned is of the Orthodox faith and conducts himself as a Christian, and, in particular, if he is a clergyman, that he is not under prohibition of performing priestly functions, or, if he is a layman, that he is not excommunicated from communion, and that he may freely enter the clergy, should he wish to do so.[12]