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Appendix III

Prot. No. 27338/96 C.A.
ABELLLINEN
(Rev. Dus Gruner - Signaturae Apostolicae)

PETITION FOR RESTITUTIO IN INTEGRUM

OR A DECLARATION OF NULLITY

       Pursuant to can. 1645, the Petitioner, Father Nicholas Gruner, hereby petitions for total reinstatement against the definitive decree of the Apostolic Signatura in this matter, dated July 10, 1999, officially issued September 3, 1999, and mailed some days later, upholding the decree of the Bishop of Avellino, dated May 16, 1996, ordering the return of Petitioner to the Diocese of Avellino, from which he had been absent with written and oral permission since 1978. In the alternative, Petitioner seeks a declaration of nullity pursuant to Can. 1622 and relevant canons.

       The canonical grounds for this Petition are:

(A) The impugned decree is so based on proofs which are subsequently shown to be false that without those proofs the dispositive part of the judgment could not be sustained. Can. 1645, § 2, 1°;

(B) Provisions of law which were not merely procedural were evidently neglected in the impugned decree. Can. 1645, § 2, 4°;

(C) The impugned decree is a judicial nullity because it is founded on a judicial act which is null, and whose nullity has not been remedied in accordance with can. 1619, and it also fails to state any legally existent motives for the decree. Can. 1622, 2°, 5°.

       The motives for this Petition are as follows:

       1. The Signatura has declared in the impugned decree that Petitioner was guilty of an “irregular condition” and that the supposed existence of this “irregular condition” was sufficient cause, in and of itself, to recall Petitioner to the Diocese of Avellino after an approved absence of more than twenty years and to deny him excardination from the diocese.

       2. The impugned decree cites no reason other than the alleged “irregular condition” for upholding the decree of the Bishop of Avellino issued May 16, 1996, ordering Petitioner's return to Avellino or said Bishop's denial of excardination. The Signatura has abandoned any consideration of the alleged “scandals and outrages” mentioned (but never specified) in the decree of the Bishop of Avellino issued January 31, 1994. Said “scandals and outrages” have never been established by ecclesiastical authority because it is manifest that they do not exist.

       3. The law of the Church does not recognize the delict of an “irregular condition” not proceeding from some particular violation of ecclesiastical law. The impugned decree made no finding that Petitioner has violated any ecclesiastical law so as to incur a recognized irregularity in his sacerdotal state. The allegation of “irregular condition” is, therefore, a canonical nullity. In consequence, the impugned decree fails to state any motives for the decree and the decree is therefore subject to a declaration of nullity. Can. 1622, 2°.

       4. The impugned decree asserts that Petitioner's condition was “irregular” because he was residing in Canada, although originally incardinated in the Diocese of Avellino. The residence in Canada did not violate any ecclesiastical law. The impugned decree neglects Canon 283 § 1: “Clerics . . . are not to be absent from their diocese for a considerable period of time, to be determined by particular law, without at least the presumed permission of their proper ordinary.”

       Petitioner had not only presumed permission, but written permission from the Bishop of Avellino to reside outside the diocese, as provided in the Bishop's decree of June 5, 1978. This permission was not revoked until January 31, 1994, when the Bishop of Avellino, acting under coercion from the Congregation for the Clergy, ordered Petitioner to return to Avellino.

       Petitioner's residence in Canada could not be just cause for the Congregation to demand Petitioner's return to Avellino, since the residence was by permission and therefore could not have been “irregular”.

       Thus, the impugned decree neglects provisions of law which were not merely procedural, namely, Can. 283, and said decree is further a judicial act which is null, and whose nullity has not been remedied in accordance with Can. 1619. Cann. 1645, § 2, 4°; 1622, 5°

       5. The impugned decree asserts, for the first time in the administrative proceedings of several years duration, that Petitioner's condition was “irregular” because Bishop Venezia's decree of June 5, 1978 did not grant permission, as such, to reside in Canada, but rather required that Petitioner first be accepted by a bishop, which requirement Petitioner allegedly violated, thereby incurring the asserted “irregularity” in his “condition.”

       However, the Signatura's own prior decree in Petitioner's first recourse (from the Bishop of Avellino's decree of January 31, 1994) acknowledged that Bishop Venezia's decree did indeed constitute permission to reside in Canada without first being accepted by a bishop, but wrong asserted that this permission—whose existence the Signatura did not then deny—was “revoked” in July of 1990. In it own prior decree in the first recourse, the Congregation for the Clergy also acknowledged that Bishop Venezia's decree gave Petitioner permission to reside in Canada without prior episcopal acceptance.

       Indeed, the decree of Bishop Venezia (mailed to Father Gruner in Montreal, Canada where Father Gruner had gone with permission) clearly contemplates that Father Gruner would be living in Canada even though not yet accepted by any bishop:

       If Bishop Paul Reding does not have the possibility of consenting to your request [for incardination in the Diocese of Hamilton] you can always present my letter to another bishop who, according to the Code of Canon law in effect, can accept you in his diocese . . . I hope that this decision of mine will meet with your satisfaction and can definitively resolve your situation in my diocese of Avellino . . .

       Accordingly, the impugned decree is based on proofs which are shown to be so false that without those proofs the dispositive part of the judgment could not be sustained—namely, the false proof that Bishop's Venezia's decree granting permission to reside in Canada imposed the condition that Father Gruner first be accepted by a bishop, when it manifestly imposed no such condition as this very tribunal conceded in the first recourse. Can. 1645, § 2, 1°.

       Petitioner had no opportunity to demonstrate the falsity of this proof in itinere and before issuance of the impugned “definitive decree” of the Signatura, because it was only in the impugned decree itself that the Signatura claimed, for the first time, that Bishop Venezia's decree did not give unconditional permission to reside in Canada, and there is no recourse against a definitive decree of the Apostolic Signatura. Can. 1629, 1°

       Due to the unfair surprise of Petitioner by the introduction of this false proof at the very end of the proceedings, depriving him of any opportunity to respond, there is no alternative besides restitutio or a declaration of nullity.

       Further, the introduction of an entirely new assertion of proof at the final stage of the proceedings, precluding any recourse or reply by Petitioner, violates Can. 1514, which states that “Once determined, the terms of the controversy cannot be validly altered except by a new decree, at the request of the party, and after the other parties have been consulted and their observation considered.”

       For these reasons, restitutio integrum or a declaration of nullity is necessary, because the impugned decree is based upon manifestly false proof whose earlier discovery was prevented by the timing of its introduction in the Signatura.

       6. The impugned decree asserts that Petitioner's condition was “irregular” because of his involvement in a private apostolate. The impugned decree neglects Can. 299, §1: “By private agreement among themselves, Christ's faithful have the right to constitute associations for the purposes mentioned in can. 298 . . .”, as well as Can. 278: “Secular priests have the right of association with others for the achievement of purposes befitting the clerical state.”

       The Signatura in the decree of September 3, 1999, concedes that the apostolate is legitimate in itself and did not need Ecclesiastical permission. Since the apostolate is concededly legitimate, and since secular priests have the right to establish and join legitimate apostolates, the impugned decree is subject to total reinstatement by way of restitutio in integrum, or, in the alternative, a declaration of nullity, because the impugned decree does not otherwise give any motives for its issuance.

       7. The impugned decree asserts that Petitioner's “irregular condition” is sufficient cause to deny him excardination to the diocese of Hyderabad. However, the “irregular condition” consists of nothing more than Petitioner's residence in Canada by permission, and his involvement in an apostolate conceded to be legitimate and in which Petitioner had the right to be involved under Cann. 278, 299.

       Therefore, the impugned decree is subject to total reinstatement because it neglects canons which preclude any imputation of the asserted “irregular condition” to Petitioner, which non-existent “irregular condition” is the only motive given for the impugned decree. Can. 1645, § 2, 4°.

       The decree is also subject to a declaration of nullity, since the denial of excardination is a void judicial act, being based on nothing more than a non-existent “irregular condition.” The impugned decree also fails to give any motives for the decree beyond a motive which is non-existent in law. Thus, the impugned decree fails to give any motives at all and is therefore a nullity. Can. 1622, 2°, 5°.

       8. The impugned decree asserts, for the first time in the proceedings, that the civil law of Italy governing immigration and visas poses no impediment to Petitioner's return to Avellino, even though he is a citizen of Canada who has not resided in Italy since at least l978.

       “Il permesso di soggiorno per motivi religiosi o di culto è rilasciato allo straniero che esibisce il visto d'ingresso per culto e la documentazione relativa alla propria qualifica religiosa (circ. Min. Interno 19 agosto 1985, n. 559/443/225388/2/4/6, capp. X e XI). Il permesso di soggiorno per motivi religiosi di per sé non consente l'instaurazione di rapporti di lavoro ed ha sempre la validità di due anni (circ. Min. Interno 20 settembre 1990, n. 43/90, punto 2).” (Bonetti P., La condizione giuridica del cittadino extracomunitario, lineamenti e guida pratica, Maggioli Editore, 1993 Rimini, p. 178).

       The applicable law in force for immigration for religious reasons and cult related labor, during the period of time in question and inherent to the arguments concerning Reverend Gruner was “Legge 30 dicembre 1986, N. 943, and subsequent modifications.

       The statutes on immigration have been subsequently revised by the “Decreto legislativo 25 luglio 1998, N. 286,” and subsequent modifications. The requirements for entrance with resident status for “lavoro subordinato in materia di culto” remain, nonetheless, unchanged.

       The impugned decree neglects the requirements of Italian civil law for religious visas: that the bishop provide written guarantees of financial support and medical insurance coverage, specify the duration of petitioner's stay, and provide a letter of acceptance to the Italian consulate. The Bishop of Avellino has never undertaken any of these steps for the obtainment of a proper visa, without which Petitioner would be expelled from Italy upon entry.

       Therefore, the impugned decree upholds an order which is impossible to obey under Italian civil law. The Church is bound by the requirements of this civil law, for as Can. 22 states: “When the law of the Church remits some issue to the civil law, the latter is to be observed with the same effects in canon law, in so far as it is not contrary to divine law, and provided it is not otherwise stipulated in canon law.”

       Thus, the impugned decree neglects Can. 22, which binds the Church to observe Italian civil law on immigration as if it were a canon of the Church. The impugned decree is therefore subject to total reinstatement by way of restitutio in integrum since it neglects applicable law which is not merely procedural and is based on false proof without which the dispositive portion of the decree cannot be sustained—namely, the false proof that immigration law poses no impediment to the operation of the impugned decree Can. 1645, § 2, 4° Petitioner was unable to raise the matter of this false proof before, because it was not presented by ecclesiastical authority until the final, non-appealable impugned decree.

       Moreover, since an order legally impossible to obey is a judicial nullity, the impugned decree is subject to a declaration of nullity because it is based upon a void judicial act: the Bishop of Avellino's order to return of May 16, 1996, which commands an act impossible to perform under Italian civil law, which is incorporated by reference into canon law. Can. 22.

       Further, the Signatura itself cited the impediment posed by Indian immigration law as just cause to deny Petitioner's excardination to the Archdiocese of Hyderabad, based on its erroneous conclusion that incardination neccessarily includes physical residence in the diocese of incardination. If, as the Signatura asserts, immigration law prevents due incardination in India, then the same must be true as to immigration law in Italy.

       The Signatura's contradiction of itself requires that the impugned decree be set aside by way of restitutio in integrum because it is so based on proofs which are subsequently shown to be false that without those proofs the dispositive part of the judgment could not be sustained. Can. 1645, § 2, 1°. It is manifestly false that Italian immigration law poses no impediment to Petitioner's return to Avellino because the Signatura itself raised immigration law as an impediment to incardination in India.

       Petitioner had no opportunity to demonstrate the falsity of this proof in itinere and before issuance of the impugned “definitive decree” of the Signatura, because the false proof first appeared in the impugned decree, from which there is no recourse and which Petitioner will therefore be unable to answer. Due to the unfair surprise of Petitioner by the introduction of this false proof at the very end of the proceedings, there is no alternative besides restitutio or a declaration of nullity.

       9. The Bishop of Avellino's order to return to that diocese was ostensibly based on “scandals and outrages” referred to in the Bishop's decree of January 31, 1994, supposedly requiring fraternal correction under Can. 1339, §§ 1, 2, 3. The Signatura has failed to find any such scandal or outrage, has not even discussed scandal or outrage, and now relies solely upon the asserted “irregular condition”, which involves nothing more than residence in Canada with the Bishop's permission and engagement in a private apostolate permitted by ecclesiastical law and conceded by the Signatura to be legitimate in itself.

       Since it now appears (and was always the case) that Petitioner is not guilty of any “scandals or outrages”, he is entitled to total reinstatement by way of restitutio because the impugned decree and the Bishop of Avellino's decrees of January 31, 1994 and May 16, 1996 are not based on any other grounds which exist in law. Further, Petitioner is entitled to restitutio in order to restore his good name by a declaration that the charge of “scandals and outrages” was groundless.

Dated: October 14, 1999
Hamilton, Ontario

Father Nicholas Gruner
Petitioner


RECURSUS PRO RESTITUTIONE IN INTEGRUM
adversus Decretum Definitivum H.S.T. die 10 julii 1999

Rev.dus Gruner = Congregatio pro Clericis

Prot. N.

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1. Infrascriptus Patronus Rev.di Nicholai Gruner, Recurrentis in causa, attento decreto definitivo H.S.T. Prot. 27338/96 CA, diei 10 Julii 1999, notificato die 13 septembris 1999, in quo edictum est: “Negative, seu non esse reformandum decretum in Congressu huius Supremi Tribunalis diei 20 ianuarii 1998 latum, quo recursus non admittitur ad disceptationem coram Em.mis et Exc.mis Iudicibus, quatenus ipse manifeste quolibet caret fundamento”, exhibet intra terminos a lege statutos, veluti procurator ejusdem Recurrentis, “Petition for Restitutio in integrum or a declaration of nullity”, ab eodem Recurrente peracta et subsignata sub die 14 octobris 1999 et die 11 novembris 1999 ab infrascripto recepta.

2. Uti pemotum est, restitutio in integrum ad normam can. 1645 § 2, nn. 2 et 4, CJC, fundatur in exsistentia rei judicatae (cann. 1641, n. 4, e 1642 § 1); habendus est, dein, veluti remedium extraordinarium.

       In Recurrentis petitione, scilicet in adnexo recursu, singillatim enumerantur sive violationes legum processualium sive substantialium, ejusdem judicio peractae in decreto definitivo de qua supra. Recurrens, pressius, in ejus petitione, diligenter recolit etiam leges in Reipublica Italica vigentes, quas decretum impugnatum flocci fecit.

       Ex parte infrascripti, igitur, enixe petitur ut argumenta a Recurrente fuse et singillatim exposita in adnexa petitione, circa praesumptas legum violationes, maxima et sedula cura perpendenda sint; ideoque, infrascriptus rogat ut sapienter et prudenter Hoc Supremum Tribunal rem definire valeat.

       Ea qua par est maxima reverentia.

Romae, 18 novembris 1999

Alanus Robertus Kershaw, R.R. Adv.

In adnexo:
Petitio Recurrentis, octo pagellis composita.


Copy of Latin cover letter dated Nov. 18, 1999, which was attached to the preceding petition for the Restitutio in Integrum with the photographically reproduced proof of reception signed and dated by the Archbishop Secretary of the Signatura and stamped with his official seal on Nov. 18, 1999.

 

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