The protocol between the Paris diocese and the Prosecutor’s office: a capitulation?
By Fr. Alexis Campo.
5 September 2019. Bustle in the ecclesiastic world: the Paris prosecutor’s office of the high court, represented by Mr. Rémy Heitz, and the Archbishop of Paris, Mgr Michel Aupetit, meet together in the archdiocesan office to sign a protocol – deemed “historic”, according to French Catholic Daily La Croix, in its edition of 6 September 2019 – providing to transfer to the Prosecutor’s office information on sexual offenses when a denunciation is received by the diocese of Paris and when it appears “credible”, even if the supposed victim has not filed a complaint. The project of that protocol was in the making since December 2018, shortly after the new prosecutor had taken office. The latter advanced the signature of this protocol to be awarded the primacy of such document among the media: such project were also, indeed, in the making in other French dioceses such as Grenoble, Valence and Gap.
The document is concise, only three pages. The agreement is for a period of one year ad experimentum. It is made of four articles: scope, communication of the report, information about actions taken following the report, follow up procedure. The objective of the protocol is to create “the conditions of a relation of trust in the long run” between the two institutions. An auxiliary bishop, who is also vicar general, “is more specifically designated by the bishop of Paris to coordinate the actions of the diocese in this regard. The adjunct State prosecutor in charge of the First division of the prosecutor’s office is the other official involved. The objective is to facilitate the communication of reports – putting more professionalism – not only when it concerns a crime or a misdemeanor (in the sense of the French penal code) but all sexual offenses, without informing for the time being the person who is being blamed (there’s no obligation of preliminary protective measures). This represents a constrain for the diocese of Paris since the protocol goes further than what the Law requires; in exchange, the prosecutor’s office promises to expedite the handling of the reports and to provide some elements of response: the diocese does not have access to the case files but is informed of the results of the inquiry (“In almost all cases, the case is filed without further action taken,” says a source close to the agreement).
The secret of confession under the watchful eye of judges
The document contains only one note which refers to a circular from the French Justice ministry, dated 11 September 2004, in regards to professional confidentiality of religious ministers and in regards to police search and seizures in religious places of worship. Father Bernard du Puy-Montbrun, who wrote a critic of the text of the protocol, considers that the interpretation given to this circular in the protocol goes over the professional confidentiality and condemns, on the basis of non-denunciation of facts known. Yet, he explains, the jurisprudence of the high court requires not to denounce but to report an offense (to tell the incriminated facts without revealing their potential author). The protocol ignores this decision. The professional confidentiality, despite the watchful eye of judges, remains absolute and inviolable, as we are reminded by the Apostolic Penitentiary.
Renunciation to the canonical preliminary inquiry
The diocese of Paris sets the tone for the other dioceses; for example, the diocese of Lyon would use the same principle but without signing a protocol; the bishops of Gap, Grenoble and Valence have signed, on Friday 22 November 2019, a protocol with the general prosecutor of the Court of appeal of Grenoble; other dioceses would like to do the same, but the local prosecutor does not wish to answer their solicitations.
In reality, the diocese of Paris renounces the proper right of the Church, that is to say to carry the preliminary inquiry in canonical Law according to canon 1717 of the Code of 1983. This canon and its implementation are probably not well-known despite the reminders of canonical authorities. Bishop Aupetit esteems that “we do not have the necessary means of the police to inquire”, which is not exactly true: good hands-on canonists know very well that preliminary inquiries they lead – “before informing” the administrative authorities (referral to the territorial committee for collection processing and evaluation, CRIP) or judiciary (referral of the prosecutor) – allow the in depth verification of the denounced facts, making sure not to pass any judgement of culpability which is the reserve of the criminal trial, the person suspected of wrong doing having the possibility to be assisted by a canonist. “This inquiry must remain confidential and not compromise the reputation of the person in question [canon 220].” In this regard, the hands-on canonist follow the directives of the Conference of French bishops… Pope Francis reminds the bishops the respect due to the presumption of innocence. It is true that, in an anti-judicial reaction, some bishops and their “staff” are tempted to bypass, at the idea of having to face the media, the judicial vicar or the chancellor. The latter sometimes make an attempt to straighten things up afterwards, as much as it is possible. Others, tend to prefer the Parisian protocol rather than falling into an amateurism that can come close to ridicule. Two recently retired prosecutors have admitted to find the bishops rather naive by trusting the Prosecutor’s office. It is also true that it is not of the competence of the canonical bodies, at the level of the preliminary inquiry, to appreciate whether the facts are prescribed in French law, this being rather complex to do; but the question in ecclesiastic law is raised only after the canonical inquiry has concluded – or not – to the credibility of the facts. In certain cases, the Congregation for the doctrine of the Faith can lift up the prescription and request a canonical criminal trial following the administrative or judiciary path.
The innate and proper right of the Church
This protocol reveals that “the Church that is in France” renounces its innate and proper right and chooses to submit to the authority, like to reigning Caesar. Because canon 1311 of the Code of canon law expresses this fundamental principle: “The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions.” This canon, preamble to Book VI of the Code of 1983 dedicated to the penal law of the Catholic Church, was analyzed by the dean emeritus of the Canonical law school of the Catholic Institute of Toulouse, Etienne Richer, in his book La lumière montre les ombres. Crise d’efficience et fondements du droit pénal de l’Église. This canon is thus fundamental. This affirmation of principle is very close, in its formulation, to canon 2214 § 1 of the code of 1917: “the Church has an innate right, proper and independent of all human authorities, to coerce offending members with sanctions either spiritual or even temporal.”
The exegesis of this canon sends back to the doctrinal communal principles of the Church perfect society. The encyclical Immortale Dei of Pope Leo XIII is a resumption by the pontifical magisterium of the theory of societas perfecta in public ecclesiastic law which irrigated the canonic penal doctrine before the pio-benedictine codification (DS 3167). The 1917 code does not expressively mention the Church as “societas perfecta”; on the other hand the apostolic constitution of promulgation does use the expression.
The penal power of the Church is said “innate” (nativum): this adjective underlines that this power exists since the origin of the Church, ex sua origine. This power is “proper” (proprium), inherent to her nature, that is to say neither vicar, nor delegated, nor granted by an other authority. Finally, this power is “independent” of all human authorities. The Church possesses, thus, this autonomous and free power and exercises it independently from the State. One should add that some crimes are specific to the life of the Church, like most of the delicta graviora, for instance the violation of the sacramental seal, the appropriation and the divulgation of a sacramental confession, the profanation of the sacred species. All this very grave crimes are not recognized by secular jurisdictions.
Is the protocol of 5 September 2019 a capitulation?
By this act, the Church is reduced to a simple association in the French landscape (the diocesan associations are the worship organization of the Roman Catholic Church born from the modus vivendi of 1923). The Church (universal) that is in France becomes the Church of France, according to well anchored gallican traditions. For Emmanuel de Valicourt, professor at the Catholic Institute of Paris, the assent of ecclesiastic authorities to the status of common law for non-profit is carried: “with the strong intention to imitate the civil norm, animated by a dry positivism.” These authorities have internalized the present judicial systems of separation and now give their consent to “the mode of secularized operations, essentially positivist, in order to facilitate the relation of the Church with the State.” Has the process of soft secularization of this legal reasoning reached its term? Or, is the protocol simply a new act in a never ending capitulation?
 Circular on the professional confidentiality of religious ministers and on police search and seizures in places of worship, Bulletin official du Ministère de la Justice, no. 95, 1st July – 30 September 2004, CRIM 2004-10 E1/11-09-2004 NOR: JUSD0430163C.
 “Protocol between the diocese of Paris and the Prosecutor’s office: fear is a bad adviser”, 27 September 2019, the magazine Liberté politique publishes in its December issue no. 83 an updated version.
 Cass. Crim. 27 February 2001, (n° 00-84-523), Bull. crim. N° 48).
 On 23 May 2014, a decision from the Supreme Court of the State of Louisiana has considered that a priest may be obliged to reveal what was entrusted to him in confession when it regards sexual mistreatments.
 Note from the Apostolic Penitentiary on the importance of the internal forum and the inviolability of the sacramental seal, 29 June 2019.
On June 7th, 2018, the Territory of the Australian capital of Canberra voted the obligation for priests to report all sexual misconduct on minors that they might be aware of from hearing confession. The Anglican Australian Church, in July 2014, authorized priests to reveal informations brought to them in confession to the secular justice regarding grave matters such as pedophilia or child pornography.
 “note regarding questions of procedure” released by the French Conference of Bishops / Council for canonical questions, 20 February 2019, signed by Bishop Joseph de Metz-Noblat, president of the said Council.
 “Directives for the handling of sexual abuse cases inflicted by clerics towards minors”, Bulletin Officiel of the Conference of French bishops, no. 60-3, 9 October 2018.
 Apostolic letter in the format of a motu proprio Vos estis lux mundi, art. 12 § 7. This non-canonical term of presumption of innocence appears for the first time in a pontifical document, in this instance a law to be applied universally.
 Concerning the influence of Cardinal Ratzinger in favor of the revision (sadly aborted) of the canonical penal system, see the article of H.E Mgr Juan Ignacio Arrieta, Secretary of the pontifical Council for the legislativ texts, by referring to the Vatican website.
 Presses universitaires de l’Institut catholique de Toulouse, 2017.
 That is a complete society. State and Church, both given in their own respective order of the full – perfect – possession of all the faculties proportionate to its goal, are called “perfect societies.”
 Alphonse Borras, Les sanctions dans l’Église, éditions Tardy, 1990, p. 202.
 Page 596 of his very interesting thesis sustained 7 December 2016 at the Canonical School of Law of the Catholic Institute of Paris, titled La société parfait, catégorie de la modernité, catégorie théologique, unpublished. We refer to this thesis in respect to the theological nuances which would be too lengthy to elaborate here.
 Op. cit. p. 697.