Canon lawyer: “Current and former Swiss bishops have trampled on the law”

The German canon lawyer Thomas Schüller welcomes the Swiss bishops' intention to set up a national criminal court. “Well-trained clergy are also a blessing in the legal area,” he says, criticizing the current generation of bishops. Schüller assumes that Rome will agree to the establishment of the criminal court.

The Swiss bishops want to set up an ecclesiastical criminal and disciplinary court in Switzerland. The background is the abuse scandal documented by the recently published pilot study. What do you think of the idea of such a court?

Thomas Schüller: The idea is not new and has been a reality in neighboring France since the beginning of the year. The idea behind this is that, especially in a small country like Switzerland, the existing canon law competence is concentrated in an independent court for the treatment of criminally relevant matters.

This creates greater independence than if each individual diocese operated with its own criminal jurisdiction. Because in the smaller dioceses everyone knows everyone and so there would immediately be concerns about bias. I can only welcome the idea. I particularly welcome the fact that they are not just thinking about a criminal court, but also want to establish disciplinary jurisdiction.

Why do you think this is important?

Schüller: There are many situations that can be viewed as assaults, but for which there is no legal basis for their assessment either in state sexual criminal law or in church criminal law. And yet they are attacks that seriously injure people's souls and bodies. For example, a failure to respect the proximity-distance ratio or a verbal derailment. A disciplinary tribunal could rule on such matters.

“The Swiss bishops could look around the neighborhood, there are definitely role models.”

What offenses would the criminal court be responsible for?

Schüller: For all criminal offenses that are mentioned in canonical criminal law. Since 2001, however, certain criminal offenses have been reserved for the Dicastery for the Doctrine of the Faith: These include all sexual offenses committed by clergy, but also offenses against the sacraments. Certain criminal offenses are therefore initially removed from episcopal jurisdiction. But now it is the case that the Dicastery for the Doctrine of the Faith has absolutely no personnel capacity to decide these cases itself. That is why they have so far been referred to a diocesan court, usually not to the one in whose territory the crimes took place, but to the court of a neighboring diocese, in order to guarantee independence.

If Switzerland were to have an independent criminal court at the national level, the Dicastery for the Doctrine of the Faith would assign these cases to this new criminal court in the future. However, all other criminal offenses, especially those relating to property law, could be brought directly to such a court.

Would a disciplinary court have jurisdiction over both clergy and non-ordained church employees?

Schüller: The Swiss bishops have to decide that. The central question would be which people should be placed under disciplinary jurisdiction. First of all, clergy should be considered, i.e. priests, deacons and bishops. But one can also think of civil servants. Behavior that is not criminally relevant, but is nevertheless abusive, would be punished in the case of employees using the normal instruments of labor law: i.e. with a warning, a warning in a serious case and then possibly with termination. The Swiss bishops could look around the neighborhood; there are definitely role models. In the Archdiocese of Freiburg, Bishop Stephan Burger recently developed his own disciplinary law.

“One can only wish the Swiss bishops that they already have these women and men in their portfolio.”

What profile should judges of an inter-diocesan criminal court have?

Schüller: They have to be men and women who have a licentiate in canon law, or even better a doctorate. Not mandatory, but helpful would be a degree in public law. It makes sense to be familiar with the criminal law of the respective country. The women and men should also have a certain amount of experience, as sensitive matters are involved. One can only wish the Swiss bishops that they already have these women and men in their portfolio or that they do everything to ensure that suitably well-trained young people can soon start and complete their studies in order to later work as judges.

Would you exclude clerics per se?

Schüller: No. It is important that they are independent clerics who have no friendly, professional or institutional connection to the accused. Well-trained clerics are also a blessing in the legal field. The pilot study on abuse in Switzerland in particular shows that current bishops and also former bishops like Kurt Koch have made mistakes. It makes all the more sense and good if clergy of the younger generation who have been trained in canon law and have the relevant qualifications work at an interdiocesan court. I make no distinction between laypeople and clerics.

So there is no need to be afraid that judges, if they are also clerics, will treat accused clerics with kid gloves?

Schüller: As a judge, a cleric is exclusively committed to the law. He has to determine the truth in the trial. And he has to judge without regard to the accused - whether he is a cleric, a religious or a layman. At our institute in Münster we regularly train clergy and teach these standards very precisely. No, I think it is unfair to place clerics under general suspicion.

“The current generation of Swiss bishops has ensured that a deep mistrust in legal compliance has arisen.”

Also in view of the cover-up by bishops?

Schüller: This is a completely different generation of Bishops who, with the exception of Joseph Bonnemain, have no training in canon law. They have trampled on canon law. And thereby ensure that your question is understandable as to whether there are clerics today who actually behave in a law-abiding and legally compliant manner. Yes, there are. But the current generation of Swiss bishops has ensured that a deep mistrust in legal compliance has arisen, since canon law has apparently not played a significant role in the Swiss dioceses.

As a layperson, it is easy to get the impression that covering up sexual assaults is not prohibited by canon law. Since when does church law prohibit cover-ups?

Schüller: In 2021, Pope Francis created his own new criminal offense of cover-up when revising canonical criminal law. This was overdue.

Can an inter-diocesan court help restore the Church's battered credibility?

Schüller: Hopefully only women and men will be appointed to the future criminal court who know the history of the institution and who will make their judgments strictly in accordance with the law - and not bend the law like the incumbent bishops do. If the bishops appoint absolutely independent judges who are committed solely to the law, I see an opportunity to restore trust among the Catholic population.

“I recommend that the Swiss bishops adopt the French model.” You mentioned the new national court in France. What experiences have you had there so far?

Schüller: At the moment it is still too early to take stock. Ask me this question again after a few years.

However, it is important to know that the German Bishops' Conference also applied for such a national criminal court in Rome in 2018. The application is still pending. Rome is currently rejecting everything presented by the German bishops - for reasons of church policy. This is annoying because it would be very helpful if we in Germany had a well-trained ecclesiastical criminal court at the national level.

The Vatican, specifically the Apostolic Signatura, must agree to the establishment of an inter-diocesan court in Switzerland. Bishop Bonnemain was confident that this could work. How do you see the chances?

Schüller: I recommend that the Swiss bishops adopt the French model. Then nothing will happen with the Apostolic Signature, which exercises judicial supervision. The French judicial order is correct in terms of canon law. There would be no factual reason for the highest court in Rome to refuse approval.

*Thomas Schüller (62) is Professor of Canon Law at the University of Münster and Director of the Institute for Canon Law. In addition, he has voluntarily accompanied victims of sexualised violence for many years.

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