ABSTRACT

The topic of preliminary investigations at the canonical criminal trial intersects with the issue regarding the guarantees to be granted to the suspect, in relation to the parameters of the so-called “due process”, in a broader sense, also including the notion of fair procedure .  The need for efficient and confidential inquisitorial activity, so as not to jeopardize the good name of the suspect, clashes with the equally important need to ensure that the suspect has the minimum technical guarantees to ward his effective right of defense.

These guarantees consist of the possibility to have a confrontation with the prosecuting authority, to know the charges against him, to be assisted by a trusted defense counsel or lawyer, as well as to be able to produce – also through the technical assistance of the same defense counsel – exculpatory evidentiary activity, through contributions that may be suitable to define the investigation without having to result in a judicial or administrative trial. From this point of view, the 2021 reform of canonical criminal law does not seem to have made significant corrections, other than the clarification of the principle of the presumption of innocence, still betraying a state of backwardness compared to modern secular legal systems. Particularly, this shortcoming takes the form of an asymmetrical relationship between the suspect and the proceeding authority and a frequent deviation of the preliminary investigation, which, from its natural collocation as a procedure aimed at verifying the validity of the notitia criminis, often trespasses into an instruction, moreover devoid of cross-examination between the parties, with obvious compression of the suspect’s rights. The corrective interventions available to the canonist could be directed along two paths: recovering the inherent synodal potentialities of canon law, making investigatio prævia a context where, while preserving the trappings of juridical efficiency, a style of dialogic co-responsibility of the subjects can find space, in order to arrive at a rational evaluation of the facts; opening up to exchange with secular systems, borrowing some institutes suitable for profiling participatory mechanisms towards the suspect, identifying precisely in the technical guarantees the crucial point of the recovery of his rights, both as a party and as a person.