Jurisdiction of the Sovereign Order of Malta (Magistral Courts)

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The jurisdiction of the Sovereign Order of Malta (Magistralgerichte) regulates the internal legal cases of the Order of Malta , while the Order in canonical subject matters of papal jurisdiction.

The Order of Malta, a papal order , has its own jurisdiction concerning internal organization, while in matters of canon law it is subject to the jurisdiction of the church (Art. 26, § 1 Constitution) (1) as an exempt order, but not under that of the bishop, but the Pope. This jurisdiction has a centuries-old tradition and has existed in its current, modern form since 1953 (2). This is explained by the fact that the Order of Malta with its predominantly non-monastic members was and is at the same time a subject of international law , so that there are controversial issues for which no state nor the church would have jurisdiction. This is especially true today for the Italian seat of the Roman head office (Grand Magisterium), especially since it recognizes the order under international law and whose government has issued the exequatur . Logically, therefore, the Roman Court of Cassation rejected the complaint of an Italian doctor against the Order for lack of jurisdiction because he was employed by the Order and thus worked in its area of ​​original sovereign power; Social and medical assistance form the core of the order's tasks in the world. The principle of international law Par in parem non habet imperium (an equal has no power over equals) also applies here .

The jurisdiction of the Melitensian (= related to the Order of Malta) jurisdiction is regulated and exists today in its code (Art. 204, §§ 1–3) (3)

  • in the case of a certain ruling during the admission procedure of a new member;
  • in case of certain disputes regarding the coming patrons (special properties of the Order);
  • in labor law disputes (active legitimation only for employees of the order's headquarters or public institutions of the order);
  • for disputes between order members as such;
  • for disputes between the order's headquarters and public corporations of the order as well as for those of these corporations among themselves;
  • in an arbitration function for inheritance and property disputes of any party with regard to their rights of disposition over property;
  • in an arbitration function for international disputes between states and other bodies capable of international law.

Outside of this canon, the Melitensian jurisdiction is subject to the determination of the permanent inability to officiate of the head of the order, the prince-grandmaster, as well as the appeal against disciplinary measures as well as appeals of the revocation decrees against members of the Sovereign Council , a kind of Council of Ministers.

The general clause for the jurisdiction of the order's jurisdiction, which existed before the amendment to the Code in 1997, no longer exists (Art. 225, g of the old version of the Code) ("The Order Courts ... decide ... on all other disputes concerning the relationships that are in the legal order of the Sovereign Order are included and belong to it. "). This may restrict the justiciability of legally relevant issues and affect the degree of “rule of law” in the Order. Even though the monastic courts also apply the constitution, which is often only detailed in the code, they are not purely constitutional courts. For example, it is not possible for them to declare a norm unconstitutional and thus null and void. You can only classify one standard as inapplicable for the specific case.

At its seat in the Roman Via Condotti, the Order has set up a court of first instance and an appeal court , each with a presiding judge and two assessors. The judges are appointed by the Grand Master with the consent of the Sovereign Council for three years with the possibility of further terms. The judge's office expires at the age of 75. Only legally scholarly members of the order can be appointed who speak law in nomine di Sua Altezza Ementissima il Principe e Gran Maestro… e del Sovrano Consiglio del Sovrano Militare Ordine di Malta . In principle, the code of civil procedure of the State of Vatican City applies . A different exercise of the magistral courts is to allow people from the public to enter the courtroom only with a permit.

Lawyers can practice before the magistral tribunals if they are listed in a national register of lawyers and have been admitted to the higher courts (appellate courts) in their home countries for at least ten years.

literature

  • Wolf-Dieter Barz: The jurisdiction of the Sovereign Order of Malta in: The Order of St. John in Baden-Württemberg, issue 104. 2000, pp. 47-50.
  • Berthold Waldstein-Wartenberg: Rechtsgeschichte des Malteserordens, Vienna 1969, pp. 112, 166, 194 f., 258 f. - Christian von Osterhausen: Regulations and Uses of the Highly Esteemed Knightly Order of St. John of Jerusalem in Malta . New edition Münster 1995, pp. 85 ff., 106 f.
  • Papanti Pelletier de Berminy, Paolo and Wolf-Dieter Barz: The new constitutional system of the Sovereign Order of Malta . A text edition [with introduction], in: Yearbook of Public Law of the Present, Vol. 48 (2000), pp. 325-350.

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