Normas de los Tribunales eclesiásticos españoles: aspectos económicos

Abstract

This article, based on a doctoral thesis defended in Salamanca on 21 st June 2004, deals with the particular norms of Ecclesiastical Tribunals, looking at their purpose, patrons and experts who intervene in the canonical process, fees and what they entail; it ends up with the regulation of the right to free juridical help. The author divides up norms published according to their declared purpose and claims that they have been published for four basic reasons: orientation and information on Tribunals and procedures, to regulate and publish fees, to demonstrate the validity/nullity of canonical marriage and obviously to foster the administration of justice. The internal analysis then goes on to examine the figure of representatives and experts and their contribution to canonical procedures, the designation of an advocate and the drawing up of a list which helps the defence and representation of the parties in the process. Justification is provided for the competence afforded by the Church and the diocesan Bishop to determine the status of the lawyer, the procurator and the expert witness. A fundamental aspect of the particular norms is that which looks at the cost of the judgement. In this area the different Tribunals try to nuance the content by spelling out what is included: only Tribunal fees, or the additional honoraria of representatives and experts witnesses, or any other supplementary additional cost. There exist published lists of expenses of the litis, the regulation of such and the determination of who pays what, with due attention being paid to the economic situation of the parties. On the subject of spending power or lack of same, different norms are worked out to facilitate free access to justice and free legal aid. As the present article underlines, this point has been meticulously worked out by ecclesiastical authorities, given the adaptation of the law of 1/1996 of the 10 th January regarding Free Legal Aid and the Royal Decree 2103/96, of 20 th September. The Ecclesiastical Tribunals sketch out the workings of free legal assistance, the norms by which those faithful who do not have the necessary resources enjoy free juridical help, if they meet the required conditions. The different Tribunals justify free legal aid on the basis of Canon Law and on the right to free aid, within a framework of personal application and on meeting some basic requirements. The article does not overlook the possibility of the exceptional recognition of a right and its material content, and also length of process and cases of economic hardship which may arise. Although not all the norms are equally exhaustive, some of then look at the competence and procedure for the recognition of the right to free legal aid on request, requirements, subsanation of any possible procedural deficiencies, suspension or not of the course of the procedure, the resolution and notification of the same, and there is even legislation covering the renunciation of the right and the possible resources for this. Legislation then goes on to look at the organisation of these free services, the appointment of the legally necessary representatives and the payment and supervision of same. These norms conclude with the regulation of the development and application of the norms for free legal aid. Above all these norms are worked out for the good of the faithful and in order to safeguard the safe access to participation in the legal process with every due guarantee.