A strange case of recognition of foreign ecclesiastical decisions in property matters
By Nicolás Zambrana-Tévar, LLM, PhD, KIMEP University
A first instance court in
Barbastro (Aragón) has ruled
that a great number of valuable works of art presently on display at the museum
of the Catholic diocese of Lleida (Catalonia) are the property of parishes of
the diocese of Barbastro-Monzón and must be immediately returned. In its
reasoning, the court has given a lot of weight to the fact that, in the decades
long dispute between the two Spanish ecclesiastical entities, the diocese of
Lleida had agreed to comply with a 2007 ruling of the Vatican’s Supreme
Tribunal of the Apostolic Signatura, the highest administrative court in
the Catholic Church, whose decisions may only be overturned by the Pope
himself. This case does not only rise the issue of the recognition of “foreign”
ecclesiastical decisions or, alternatively, their relevance for state courts but
also how indistinguishable is the science of private international law from the
study of legal pluralism, i.e. the interaction of various legal systems over
the same territory, subjects and subject-matters.
Since the middle ages, a small
stripe of land in the Spanish region of Aragón (La Franja de Aragón) was under the religious jurisdiction of
the bishop of Lleida. Article IX of the 1953
concordat between Spain and the Holy See already manifested the intention
of both parties to the treaty to revise the existing territorial ecclesiastical
constituencies to avoid dioceses which did not correspond to existing state
provinces. In 1995, following a decision of the Spanish bishops’ conference,
the Holy See decided to transfer all the parishes in La Franja to the diocese of Barbastro. Further to this
reassignment, the diocese of Barbastro requested that all the works of art
which were on display at the diocesan museum of Lleida be returned to the
parishes of La Franja, to which they
allegedly belonged.
At the beginning of the 20th
century, those works of art had been taken to Lleida from the abovementioned
parishes, partly due to their state of decay. The basic legal question here was
whether the long deceased bishop of Lleida, who had brokered the deal, had bought those works of art a century ago
or whether they were only on deposit at the Catalan diocesan museum.
The return of those pieces of art
has been a matter of regional – or national – pride for more than twenty five
years. For many, this basically ecclesiastical
dispute over religious property must be put in the context of recent
nationalist aspirations of the Catalan government because many inhabitants of La Franja speak Catalan and this territory
is sometimes perceived to be part of Catalonia in much the same way as
nationalists refer to other territories in Spain, France or Italy as països catalans. What began as a bitter dispute among bishops
has ended as a much bitter dispute between neighbouring regions after their
autonomous governments espoused the respective claims, including street
demonstrations and endless litigation before Church tribunals and state courts,
both civil and administrative. The court records by now have more than 30.000
pages.
The dispute should have ended in
2007 when the Supreme Tribunal of the Apostolic Signatura heard the last
possible ecclesiastical appeal against previous rulings of lower canon law
courts. The text of this decisions is, of course, in Latin. Thus,
the Vatican court ordered the immediate return of the art pieces. Further to
this decision and probably compelled by it, the two dioceses signed an
agreement in 2008, where the Catalan diocese acknowledged that the legitimate
owners of the works of art were the abovementioned parishes of Aragón. Soon
afterwards, however, the Lleida bishop went back on his word, apparently when
more than 300 letters from the beginning of the 20th century resurfaced,
allegedly showing that amounts of money had been paid by the former bishop of
Lleida to the parishes of La Franja,
following the removal of the art pieces to the diocesan museum of Lleida. This
money was allegedly the price paid for them, so the Catalan diocese owned them.
The diocese of Barbastro nevertheless
sought to have the 2007 Vatican decision recognised but, in 2010, a Spanish
court ruled that the only ecclesiastical decisions which could be
recognised and enforced in Spain under the new 1979 concordat
were those concerning the nullity of marriages (pp. 6-8). The diocese of
Barbastro and the Spanish prosecutor present at the proceedings understood
that, nevertheless, the 2007 decision may be recognised under those Spanish
domestic law provisions for the recognition of foreign court decisions in the
absence of a treaty. The “country” of origin of the 2007 decision was, of
course, the Holy See.
The Spanish court did refer to
the Holy See as a subject of international law at the level of states.
Furthermore, the Catholic Church’s jurisdiction and autonomy within the Spanish
territory and over Spanish Catholics was recognised by the Spanish state by
means of an international treaty (i.e. the concordat). Part of this autonomy
was – in the eyes of the court – the jurisdiction of ecclesiastical tribunals
in religious property matters. Ecclesiastical tribunals had therefore
jurisdiction to adjudicate in property disputes and to enforce the ensuing decisions
internally. Such jurisdiction was acknowledged and respected by the Spanish
state, which should not interfere with it and, therefore, an ecclesiastical
entity could not request state courts to enforce ecclesiastical decisions
because this would represent such an act of interference. Ecclesiastical
entities may alternatively bring their property claims before Spanish state
courts in the first place, which have in the past decided similar cases
applying canon law but, if the dispute had been heard and decided by a Church
tribunal, state courts had to remain aloof.
However, last week, the same
court which in 2010 had refused to recognise the 2007 Vatican decision has now
ruled in favour of the return of the works of art to the parishes of Aragón.
The Barbastro
court explains (p. 17) that the ecclesiastical rulings were not enough in
themselves, as evidence of the property rights of the Aragonese parishes.
However, such rulings may in fact be evidence of the testimony provided by the
parties to the dispute. Additionally, the settlement agreement made by the two
dioceses, further to the Vatican ruling of 2007, should indeed be taken as an
admission by the diocese of Lleida that the works of art belong in Aragón.
Thus, indirectly, the Vatican decision was being respected.
This use made of a “foreign”
ecclesiastical court ruling presents some similarities to the theory of vested
rights and estoppel per res iudicattam
in a common law context, whereby foreign court decisions may not be recognised
as such but their content may be evidence of a new cause of action in new
proceedings commenced in the country where recognition is sought. Even though
the Spanish court in 2010 and 2019 was equally unwilling to recognise the
effects of the ecclesiastical decision because it had been issued by an
ecclesiastical tribunal whose autonomy and jurisdiction would be jeopardised if
the Spanish court enforced its contents, the first instance court of Barbastro
was now in a position to give a lot of weight at least to the declarations that
the parties had made during the proceedings at the Vatican, as well as to the
settlement agreement that the Vatican decision had brought about.
The Spanish court also made
direct use of canon law as evidence of property rights when it found that, for
the transfer of ecclesiastical property to have been valid, a special permit
from the Holy See would have been needed, which was never sought nor obtained. That
Spanish state courts apply canon law is relatively common in, for instance,
employment cases – as a way of demonstrating that the relationship between a
priest and a bishop is not of an employment nature – or in clergy sex abuse
litigation – in order to demonstrate the degree of organizational or
supervisory authority of bishops over priests and parishes.