The invalidity of the sentence and the complaint of nullity

Abstract

This thesis presents an analysis of the institute of the Querela Nullitatis as one of the remedies presented in the Codex Iuris Canonici (1983) in order to challenge a sentence delivered by the Ecclesiastical Tribunal. Since the Ecclesiastical Tribunal seeks to deliver Justice and Equity to the parties in trial, sometimes this is not achieved due to possible defects with which the sentence may be affected. This thesis seeks to address such situations and the applicability of the complaint of nullity. Chapter I entitled 'The Grounds of Nullity' deals with the possible defects with which a sentence may be affected and which serve as the basis for the complaint of nullity. Primarily, it seeks to distinguish between irremediable defects and remediable defects, and then it sets to examine each ground of nullity in further detail which provides for a proper understanding of the meaning, scope and application of the querela nullitatis. Chapter II entitled 'The Grounds of Absolute Incompetence and Denial of Right of Defence' provides an analysis of two irremediable grounds of nullity which due to their nature and their use in Tribunal practice merit special attention. This chapter provides much food for thought in highlighting those circumstances under which such grounds are applied even by shedding light on the interpretation of the ground of denial of right of defence by the European Court of Human Rights. Chapter III entitled 'Who May Lodge the Complaint of Nullity?' deals with the persons who may lodge the querela nullitatis. It provides for analysis of those circumstances when the private parties, defender of the bond, iv promoter of justice and/or the judge himself, may lodge a complaint of nullity. Chapter IV entitled 'The Modality of the Institution of the Complaint of Nullity' seeks to address the procedure with which the querela nullitatis may be proposed. This is done by examining the procedure of the complaint of nullity whether proposed per modum actionis or per modum exceptionis, whether it is proposed together with an appeal, among others. Then it also examines the manner of determination of the complaint of nullity vis-à-vis that of the principal cause; and the manner in which it is to be determined, be it through the ordinary contentious process or the oral contentious process. Finally, the conclusion of this thesis wraps up the various arguments brought forward by this thesis and provides to emphasis the raison d'etre of such an institute based on the search of truth and Justice.