The pope's judges: We can very well administer justice

Pope Francis was visibly proud. "Yes, there was a scandal. But this time it was us who took the lid off the pot, not someone from outside," he said in November 2019 in response to a journalist's question following the raid on his Secretariat of State a few weeks earlier. The raid was followed by suspensions and further investigations.

The trial then began in July 2021 under presiding judge Giuseppe Pignatone, a successful former Italian anti-mafia prosecutor. The charges against ten defendants ranged from abuse of office and embezzlement to forgery, bribery and extortion. The main focus was on the acquisition - and subsequent loss-making sale - of fund shares in a luxury property in London.

The judgement of 16 December 2023 "in the name of His Holiness Pope Francis" imposed fines in the four-digit range up to several years' imprisonment. Ten months later, on 30 October, Judge Pignatone and his colleagues Venerando Marano and Carlo Bonzano published their 819-page reasons for the judgement.

International legal standards in the Vatican?

In over 70 pages, the panel of judges addresses fundamental criticism that has been levelled from the outset: 1. there is no fair trial in the Vatican state; the proceedings do not comply with modern constitutional principles. 2. the judges were not independent. 3. the Pope could intervene at any time. 4. the prosecution had been granted more rights than the defence.

In the fundamental "second part" on "some introductory questions", the judges perform a balancing act. On the one hand, they defend and justify the autonomy and uniqueness of the Vatican legal system. On the other hand, they argue that the justice system of the papal state fulfils international standards of a modern constitutional state and is compatible with corresponding laws and agreements.

The defence lawyers had doubted this, citing the Constitution and criminal procedure law of the Republic of Italy, as well as Article 6 of the European Convention on Human Rights (ECHR) and EU Directive 2005/60/EC.

Article 6 of the ECHR affirms the "right to a fair trial" with a public, oral hearing before an independent and impartial court, the right to equality of arms between the prosecution and defence, the right to be heard, the right to reasons for decisions and the right to inspect files. In addition, defendants should have access to state court proceedings regardless of their personal financial situation. EU Directive 2005/60/EC - replaced in July by Directive 2015/849 - is intended to help combat money laundering and terrorist financing.

In their response, the judges refer to the legal sources of the Holy See and the Vatican State: the general canon law "Codex iuris canonici", with its penal code, which was only reformed in 2021 and also deals with financial offences, as well as various laws of the Vatican State. Therefore, "neither the fundamental law of another state, such as the Constitution of the Italian Republic, nor a convention to which the Vatican is not a party, can be applied".

At the same time, the Vatican legal system "has implemented these fundamental principles through its own legislative measures", according to the judges. The Vatican system "fully complies with the requirements of Article 6 of the European Convention on Human Rights, particularly with regard to due process". Moreover, a) the provisions of Article 6 ECHR are so broad that they can be implemented by states with different legal systems, and b) the Vatican - as well as the EU as such - has not acceded to the ECHR. The European Court of Human Rights (ECtHR) also grants "Member States a margin of appreciation in applying the standards of the Convention in the manner best suited to their domestic circumstances".

Parallels and differences to Italian criminal procedure law

According to the Vatican Court, the same applies to Directive 2005/60/EC against money laundering and terrorist financing. This is part of the monetary agreement reached between the Vatican, the EU and Italy under Benedict XVI on 17 December 2009 and, according to the agreement, is to be implemented "in a manner that is not incompatible with the principles of the ECHR". On the other hand, the directive "cannot provide direct and immediate implementation on its own". Rather, the member states would have to take appropriate initiatives for implementation and application within their legal framework, "leaving considerable room for discretion in this respect".

The judges go on to discuss details of criminal proceedings such as the connection between cross-examination and the establishment of facts, the questioning of witnesses who have not appeared despite being summoned and the provision of evidence. On these points, Pignatone and his colleagues refer in particular to parallels and differences with criminal procedural law in Italy and other countries. In some respects, Vatican law was even earlier or more advanced than Italian law.

In Italy, too, it was always possible "to introduce documents with omissions into the trial: Suffice it to think of all the great trials against organised crime (...) in which the testimony of 'collaborators of justice' was and still is omitted in order to protect investigative needs or facts that were not the subject of the indictment." The Vatican prosecutor Alessandro Diddi has been accused of such incomplete evidence on several occasions.

The non-admission or limited questioning of witnesses, also criticised by the defence, is also common elsewhere. At the same time, "the Vatican Code, which, like the French and many others, adopts the principle of inquisition, cannot be compared with the principle of accusation in the current Italian Code".

With regard to the accusation that the Vatican judges "do not have the independence and impartiality requirements required by international conventions", the court refers to the Vatican law CCCLI of 16 March 2020 (Art. 1, para. 1): "The judges are hierarchically dependent on the Pope. In the exercise of their functions, they are subject only to the law." According to the judges, it is clear "that hierarchical dependence refers to organisational aspects and, in any case, to aspects other than the 'exercise of their functions', in which, as the same paragraph states, judges and public prosecutors are 'subject only to the law'". This is confirmed once again by the Pope's Motu Proprio of 12 April 2023, which states, among other things "Judges and prosecutors exercise their powers impartially, on the basis of and within the limits of the competences established by law."

The judges also cite publications by jurists who have recognised the "independence and impartiality of the Vatican judiciary and its exclusive submission to the law". The pope's previous ability to dismiss judges at will was finally eliminated with a legal reform in 2023.

Judges' independence not impaired

Finally, the judges concede to the accusation that, in the course of the trial, the Pope intervened several times with individual measures, so-called "rescripta", which "exceptionally and ad causam - i.e. only for this case - (...) changed the powers and responsibilities of the prosecutor at his express request to the detriment of the accused's sphere of freedom". (Anyone familiar with Francis' style of government will know that this is not an entirely far-fetched accusation).

Yes, say the judges, there had been such interventions, but these did not violate the "principles of legality and the reservation of the law". Rather, it is a matter of procedural law, so that "the principle of 'tempus regit actum' applies". However, interventions to speed up or clarify proceedings do not impair the independence of the judge. And incidentally, this is also often done by the legislature of the Italian Republic.

With the reasons for all individual judgements now available and an explanation of the Vatican legal system, the defence can now proceed with the announced appeal. The Vatican justice system will therefore have to prove itself further.