Rotal Jursprudence on required contractictory
- Posted by Mary's Advocates
- On August 6, 2016
Mary’s Advocates Observation:
A tribunal does not satisfy its obligation to ensure the respondent’s right of defense when the tribunal refuses to let the respondent make and keep his or her own notes during the reading of the acts of the case. It seems that the respondent’s “faculty to respond, at least once, to the allegations and defenses of the other party” is “substantially restricted,” when he or she is not allowed to take notes. How can one respond to that which one does not remember? Some of the responses are not submitted until after the first instance decision is issued, which could be many months after the reading of the acts.
Jurisprudence from the Roman Rota supporting observation:
51 Jurist 1991 page 203-216
Boccafola, Kenneth coram Ponente
Given at Rome, in the seat of the Tribunal of the Roman Rota, on July 25, 1989
A citation is clearly needed to constitute or open the contradictory. But a mere citation does not suffice to constitute the contradictory, if the party is not then given a concrete possibility to take part in a real way in the contradictory. A citation is the opening of the contradictory, but it does not exhaust or complete in itself the whole contradictory.
Concretely, the right of defense (the judicial contradictory) consists principally in: (a) the faculty of bringing forward proofs to the trial; (b) the faculty of knowing the proofs adduced by the other party; (c) the faculty of exhibiting one’s own line of reasoning, one’s own allegations and defenses; (d) the faculty to respond, at least once, to the allegations and defenses of the other party. Hence, if the concrete possibility of exercising all of the above faculties is denied, or substantially restricted, a true judicial contradictory is missing and hence the process is null insofar as that which essentially constitutes the process, that is, the contradictory, is lacking. This may be true even though the omission of one or other of those individual acts does not involve the nullity of the process, since a particular act may not be required under the penalty of nullity.