Church secret archives criticised – Switzerland creates facts

In the Vatican the secret archive has been called the Vatican Apostolic Archive since 2019.. Pope Francis considered the old name too misleading and out of date. But there are still secret archives in the Church - and many of them: Every diocesan bishop is obliged by canon law to set up a secret archive. In the Vatican, secret archives was just a traditional term for the central archives of the Curia. Many things in it are not secret at all: the papal laws collected there, for example. In the diocese, on the other hand, the "secret" in the archive is to be understood literally and in today's sense: Only the diocesan bishop himself is allowed to have the key, and documents with a particularly high need for protection are kept in the archive: secret matrimonial matters, and above all the files of ecclesiastical criminal cases in morality proceedings, i.e. information about abusers.

The purpose of the secret archive is to provide special security for particularly sensitive information. However, the archiving of files on church abuse trials means that the names of perpetrators can disappear unrecognised in the secret archive. To make matters worse, such records must be destroyed ten years after the conviction or after the death of the convicted person. Only a brief report of the facts with the wording of the final sentence is to be kept.

Time and again, expert reports on the handling of abuse cases contain references to missing files, not only with regard to secret archives. Most recently the Swiss pilot study criticised the practice of destroying files. The practices and traditions of archiving reflect the Church's "traditional culture of discretion, secrecy and confidentiality", the study says: "The regulations on file destruction that are still in force today not only hinder research (because they can legitimise the disappearance of files), but they can also have dramatic effects on those affected, who can no longer see their files or can only see them incompletely."

Swiss bishops pledge not to destroy files

Among the immediate measures announced by the Bishop of Chur, Joseph Bonnemain, who is responsible for coming to terms with abuse in the Swiss Bishops' Conference (SBK), is an End to the destruction of files. Already at the first press conference after the presentation of the report, he emphasised that all dioceses have committed themselves to no longer destroying abuse files - even where canon law prescribes the destruction of files. Shortly afterwards, the Bishops' Conference made this announcement even more official: in the notices in the "Schweizer Kirchenzeitung", the Swiss Church's official organ of announcement, it was officially confirmed what the bishops had agreed to: "So that the researchers can continue to deepen their study of sexual abuse in the Roman Catholic Church in Switzerland in the coming years, all members of the SBK have signed a personal commitment (nota bene in contradiction to current canon law) to ensure that all archives under their responsibility, which could contain clues and information about cases of abuse, continue to be accessible and that no documents are destroyed."

It is well known from abuse reports that bishops do not adhere to church law. That they do not want to do it with public announcement (even if with good intentions) is new. "When bishops announce that they will not destroy files as prescribed, this is formally a breach of law. In this case, a breach of positive law, i.e. law that the Church could also set differently," Freiburg church law professor Georg Bier explains to katholisch.de. The obligation to delete the secret archives is not punishable, at most a breach of official duty is possible, according to Bier: "But you have to keep your head down. The responsible dicastery will certainly not resort to severe consequences here, if at all." In addition, the destruction of files is a well-known part of the problem of covering up abuse: "The intention of the Swiss bishops to prevent cover-ups is positive - what is problematic is the implementation."

The Fribourg professor sees a fundamental problem in the fact that legal practitioners, in this case the bishops, decide for themselves whether or not to recognise a norm as binding: "In this case it is well-intentioned arbitrariness, but it remains arbitrariness." Bier fears that the lax handling of the law in a good cause could lead to the law being pushed aside in other, less clearly desirable cases, or that others will take the bishops' example as a model: "The bad example corrupts good manners."

For the canon lawyer, other measures would be more appropriate: One possibility would be a Dispensation. Bishops cannot exempt themselves from the obligation to destroy files, but they can ask the competent Vatican authority for a dispensation. Bier thinks it would be even better to tackle the issue in principle and take the problems with the existing law to Rome in order to change the law itself. "Possible demands would be, for example, a more precise definition of what has to be included in the report of the facts that has to be kept. So far, there is nothing in the law on this. Against the background of the findings from the abuse investigation, one could also think about a significant extension of the current ten-year period for destruction," Bier summarises his reform proposals.

Wording or usefulness of the law for life?

There are also other assessments within canon law. In the interview with the Swiss portal "kath.ch", canon lawyer Astrid Kaptijn from the University of Fribourg from the University of Fribourg, unlike Bier, emphasised not the validity of written law, but its purpose and usefulness for life. "If a provision, as in this case, no longer meets the needs of the faith community, it lapses. It is logical and obvious that at some point it will no longer be applied. In church history, this has happened many times," she stresses. For Kaptijn, the bishops' action is not an indication that they do not want to respect canon law: "Rather, they have decided that there are more important values to refer to regarding sexual abuse. And that is logical: law follows life and promotes it."

When asked, the Swiss Bishops' Conference justified its action with the urgent need the study had shown. "The bishops have reflected deeply on the current situation in Switzerland, in connection with sexual abuses, and have come to the conclusion to dispense with the provisions of c. 489 § 2 CIC," Bishop Bonnemain's spokeswoman said in response to a question. While no dispensation had been sought, there was also no intention of a break with the universal Church. "For various reasons, this provision is obsolete. For this reason, the Swiss bishops intend to propose to the competent authorities of the Apostolic See that this Canon be deleted," the spokeswoman continued. However, this would take some time. The Pope's contact person in Switzerland, Apostolic Nuncio Martin Krebs, is not alarmed. The issue is being dealt with and requires reflection on several levels, he said on request.

In canon law, the episcopal secret archive has been criticised for years. "According to the law still in force, the diocesan secret archive can still resemble a black hole if relevant documents are deliberately kept under lock and key, even for the purpose of clarifying sexual violence," wrote the canon lawyer Jessica Scheiper on "Feinschwarz.net".. She pleads for bishops to ask for a dispensation from the obligation to keep documents secret: "Probably no concern justifies comprehensive transparency more than the clarification and processing of abuse allegations." In any case, third parties are now often granted varying degrees of access to the contents of the secret archive without the necessary dispensation from the Apostolic See - this is shown by various reports on abuse, in which it is sometimes implicitly, sometimes explicitly mentioned that files from the secret archive were used.

Taking state archive law as a model

Bier raises the question of whether there is a need for a separate secret archive at all, to which only the bishop has access. "Files that require special protection can also be saved in a normal archive, they just have to be classified accordingly so that not everyone can access them," he explains. In addition, he says, the regulation that only the bishop is allowed to have a key is not practicable: "It also means that the bishop has to make sure that the knowledge in the secret archive is used, for example in personnel matters. That is likely to be an excessive demand on a regular basis in day-to-day business."

Especially in the case of files on sexual offences, there is the dilemma that files are often needed long after the deletion deadline, which exists for good reason, for example for processing or to establish indications of patterns of behaviour, but above all to be able to prove omissions or cover-up attempts by the responsible bishops, if necessary. In state law in Germany, the Judicial Records Retention Ordinance, which applies nationwide, provides for a 30-year retention period for criminal convictions and orders. Bier proposes that all files be housed in the general diocesan archive. Special protection needs should then be solved by classifying them in protection classes, as is also provided for in state archive regulations.

A proposal by Daniel Lorek, archivist of the diocese of Magdeburg, goes in a similar direction. In a contribution to the blog of the Zeitschrift für kanonisches Recht (Journal for Canon Law) the studied canon lawyer suggests deleting the obligation to delete from canon law and applying a tried and tested method from archival law, the so-called "deletion surrogate": instead of actual destruction, a transfer to a secure part of the diocesan archive should take place. "This could then really 'take the wind out of the sails' of any criticism regarding an episcopal secret archive that used to be called that," Lorek emphasises.

It may take a long time for this criticism to reach the legislator - in this case the Pope - and be implemented by him. In the meantime, the Swiss bishops have created facts for their area. "In their responsibility as pastors," emphasises the Chur spokeswoman.