Violation of Constitutive Procedural Laws and Injury to the Right of Defense

Abstract

Injury to the right of defense is an issue that is very often the subject of in-depth study in the jurisprudence of the Roman Rota, especially in its function of providing for the unity of jurisprudence (cf. Praedicate Evangelium art. 200). Jurisprudential intervention is necessary because, while it maintains the principle of the inviolability of the right of defense, the code’s regulatory framework—especially following the 2015 reform of the matrimonial process—does not adequately clarify the essence of the right and the guarantees necessary for its concrete implementation. The right of defense, in fact, assumes essential importance in the dynamism of the judicial function in that it must be understood as the parties’ power of effective participation in the conduct of the trial, to ensure a judicial relationship not only in theory but in practice. The decrees of the Roman Rota under comment deal with two distinct cases that, however, have in common a restriction of the parties’ ius defensionis so serious as to cause the irremediable nullity of both appealed decisions, ex canon 1620, 7º of the Code of Canon Law