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All due process: What you need to know about the Vatican court ruling

First day of the Vatican financial scandal trial, 27 July, 2021. Credit: Independent Photo Agency Srl / Alamy Stock Photo

The Vatican City’s criminal court rejected on Tuesday a raft of pretrial motions asking that a criminal case be dismissed against 10 defendants charged with a range of financial crimes.

The three-judge panel cleared the way for evidentiary hearings in the Vatican’s financial crimes trial to begin in two weeks, with star defendant Cardinal Angelo Becciu set to take the stand this month.

Seven months of procedural wrangling in the case have now concluded, and the trial portion of the trial is actually going to begin.

But over the past seven months defense attorneys have aimed to call into doubt the credibility of the Vatican’s entire judicial system. What exactly have lawyers been arguing? What did the Vatican judges decide?

What have the last seven months of procedural motions really been about, anyway?

The Pillar breaks it down for you.

In a nutshell

Lawyers can argue about a lot in seven months. In the case of the Vatican financial trial — which has simply never happened before — attorneys for the defendants found a lot to occupy the judges’ time.

Defense lawyers claimed that the Vatican process involved failures of due process, or the protection of their clients’ rights to fair investigation and prosecution.

There were questions, and disagreements, about which laws were supposed to be followed in the Vatican City state. Lawyers cited Italian law, canon law, the Vatican City state’s own legal code, and some specific decisions of Pope Francis.

There were also questions about how evidence was gathered, what evidence the prosecution chose to use, and which parts it chose not to bring to court. There were even arguments about which Vatican institutions should be allowed to sue which of the defendants for damages.

Lurking behind all of that is the role of Pope Francis himself. Some defense lawyers have charged that the pope appears to be at once chief prosecutor, chief judge and informal witness in the case.

Each of those issues were addressed by judges in a 40-page decision this week.

Which law applies?

Lawyers for the defendants filed several motions claiming that the whole procedure — from the original investigation by Vatican law enforcement, though the interviewing of witnesses, and up to the official charging of the 10 defendants — didn’t conform to the technical provisions of the Italian constitution and the European Convention on Human Rights — and therefore didn’t protect due process and the right of defense for the accused.

But as the judges pointed out this week, neither Italian nor pan-European procedural law actually applies to the Vatican City state.

“It must first of all be noted, from the formal point of view, that in the Vatican City State… neither the fundamental law of another state, such as the Constitution of the Italian Republic, nor a Convention to which the Vatican has not adhered can be applied,” the judges ruled.

Instead, the Vatican has its own codification of procedural rights, which states:

1. Everyone has the right to a fair and public hearing within a reasonable time, before an independent and impartial tribunal established by law, for the purpose of determining [...] the merits of any criminal charges that are brought against him. The sentence must be made public.

2. Every person accused of a crime is presumed innocent until his guilt has been legally established.

3. Every accused has more especially the right to:

a) be informed, as soon as possible, in a language he understands, and in a detailed manner, of the nature and reasons of the accusation against him;

b) have the time and facilities necessary to prepare his defense;

c) defend himself or have the assistance of a defender of his choice and, if he does not have the means to reward a defender, be able to be assisted free of charge by an official lawyer when the interests of justice so require;

d) to interrogate or have interrogated witnesses against him and to obtain the summons and interrogation of witnesses on his behalf under the same conditions as witnesses against him;

e) to be assisted free of charge by an interpreter if he does not understand or speak the language used in the hearing.

The court also pointed out that two recent decisions by courts in Switzerland and Italy affirmed that the Vatican’s own judicial process is clear, credible, and maintains important procedural safeguards.

Some defendants also logged complaints that the Vatican process hadn’t conformed to the provisions of the Code of Canon Law.

Vatican City law does recognize "in the canonical order the first normative source and the first interpretative reference criterion," as the judges noted this week.

But canon law provides a legal and interpretive framework for understanding the exercise of executive, legislative, and judicial power in the context of the Holy See and the person of the pope. The canons of the Code of Canon Law, which is the ecclesiastical law for the universal Latin Church, do not govern civil criminal trials in Vatican City state, which has its own criminal and procedural codes.

So, for example, when lawyers for Gianluigi Torzi argued that Vatican prosecutors hadn’t conducted their investigation according to the norms of canon 1717, the judges dismissed their argument as “an obvious misunderstanding,” since that canon governs ecclesiastical Church processes, not civil cases in Vatican City.

One of the defendants, Enrico Crasso, also tried arguing that the allegations against him are outside of the Vatican’s jurisdiction because he - allegedly - committed his acts of money laundering and embezzlement in Switzerland. The court was therefore attempting to charge a foreign national for actions taken in another country, Crasso said.

In that instance, the court effectively ruled that Crasso’s crimes were committed in his capacity as an investment manager for the Holy See (and agent of the state) and, in that sense, were committed “against the security, the fundamental interests or the patrimony of the Holy See,” which is a crime established in the Vatican City’s criminal code.

Lack of Due Process?

Within the context of the Vatican City’s own laws and procedures, lawyers for the defense also tried to argue that the prosecution had not followed the Vatican City’s own procedural law. They objected especially to four rescripts — special orders — signed by Pope Francis which basically authorized the investigation in the first place.

Those papal orders were signed in response to an initial complaint made by the IOR in 2019, a Vatican bank, which the Secretariat of State pushed to approve a 150 million euro loan in July 2019.

That loan was supposed to refinance the mortgage on a London property the secretariat had just purchased, but the whole deal looked fishy to the IOR.

Pope Francis agreed with that assessment, authorized prosecutors to start looking into the Secretariat of State, and to tap phones and computers. The pope also absolved the chief prosecutor from the obligation of state secrecy about what he discovered.

Those rescripts from the pope, lawyers for the defense argued, meant the whole investigation and all of the charges should be thrown out, because no one knew the investigation was happening and, well, that’s not how it’s done in Italy.

Too bad, the Vatican judges ruled.

First, Italian law doesn’t apply to this case (see above). Second, Pope Francis isn’t just the chief executive of the Vatican City, he’s the supreme legislator, too. The rescripts he signed allowing the investigation aren’t “contrary” to Vatican City law, the judges pointed out, they are the law.

The pope essentially appointed a special prosecutor to conduct a criminal investigation into a sensitive government department. The defense was angry that he’d done it quietly, and the people under investigation had no way of knowing it was happening. The judges were not swayed.

Cardinal Becciu’s legal team made another interesting argument about the warrant.

They argued that since the pope approved the investigation in response to a complaint about the London property deal, prosecutors were legally authorized to look into that deal, and nothing else.

Evidence they found related to other alleged criminal activity by Becciu — specifically funneling Church funds to members of his family and to his personal spy, Cecilia Marogna — was outside their remit, the lawyers said, and needed a separate warrant.

The judges did not agree.

They pointed out that, whatever complaint aroused suspicions about the goings-on at the Secretariat of State, Francis authorized prosecutors to look into criminal behavior “in the carrying out of financial activity by representatives and employees of the Secretariat of State,” which definitely includes the allegations Becciu is facing.

Becciu also asked for the charges against him to be separated from each other, and tried in individual legal processes — a petition which  would have seen him facing four Vatican trials instead of one.

The judges bounced that request, too. They pointed out that all the financial allegations against the cardinal stem from the original investigation into criminal financial dealings at the Secretariat of State.

The judges also rather pointedly observed that the last of Becciu’s alleged crimes, attempting to suborn witness testimony during the investigation, “is strictly connected to all the others” and merits the cardinal facing all his charges at once.

A similar argument about the warrant was made by lawyers for Enrico Crasso and Msgr. Mauro Carlino (another former official at the Secretariat of State), who argued that the papal authority granted to the prosecutors to investigate ended with "the conclusion of the investigations," and so anything the prosecution found after they filed charges in July last year was inadmissible.

Ironically for the defense, the judges pointed out that, following complaints from their legal team, the court ordered the prosecution to withdraw some of the charges in October last year and reopen the investigative phase, essentially reactivating their original warrant. Oops.

Those charges were re-filed with the court in January this year.

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Turning over evidence

Since the beginning of the trial at the end of July 2021, defense lawyers have consistently complained that prosecutors need to turn over all the evidence they have.

Much of the focus has been on the footage of hours of interviews recorded with Msgr. Alberto Perlasca, who served for years in the Secretariat of State’s administrative office and found he had a lot to say once investigators started asking questions. But there have also been complaints from defense lawyers that dozens of cell phones, tablets, computers and other files — including wiretap recordings - were seized or gathered in the course of the two-year investigation and quite a lot of them have not been filed as evidence with the court.

In the case of the Perlasca tapes, prosecutors first argued that they shouldn’t have to give the full recordings to the defense because some of the things discussed were irrelevant to the case and some related to other ongoing investigations. If they handed over the tapes, they said, the defense would just leak them to the press.

Eventually they did deposit the recordings, with only some sections edited out which they said related to ongoing criminal investigations and weren’t relevant to the charges being brought, but this didn’t satisfy lawyers for the defense.

To all this, the judges noted that — since the defense were so keen on citing Italian legal examples — they should consider that it is not unusual in organized crime cases for prosecutors to hold back evidence they gathered which didn’t bear on the case at hand, both to protect sources and to shield ongoing investigations, but this had no bearing on the due process of the case in hand.

“In fact,” the judges said, “the Promoter of Justice took steps before filing… to distinguish between the seized media those concerning the defendants and the charges subject to the proceedings from those unrelated to them and therefore only deposited those falling within the first category.”

Basically, the judges said, the trial only concerns the charges brought and will be tried only on the evidence presented in court. They have “no competence to decide on the things seized, but not deposited, in this proceeding.”

If the defendants want their other laptops and cell phones back, the judges said, take it up with the Vatican cops.

Pope Francis’ ‘interview’

Probably the biggest story to come out of the Vatican trial's preliminary hearings came from a 30-second clip from the Perlasca tapes, leaked to Italian media (surprise, surprise).

In that clip, Alessandro Diddi, the lead prosecutor, can be heard talking to Perlasca, as the monsignor recounts how the Vatican decided to pay off Gianluigi Torzi, who was (allegedly) holding control of the London building for a kind of ransom, after the Secretariat of State had already paid some 350 million euros for it.

As Perlasca explained that he wanted to contact law enforcement about the alleged extortion, but was frozen out of the final decision to pay Torzio off, he appeared to indicate that it was Pope Francis who made the call to pay Torzi off, rather than make a legal case out of things.

“Monsignor, what you are saying has nothing to do with it. We went to the Holy Father and asked him what happened,” Diddi said on the tape.

That single sentence kicked off a frenzy of media coverage and defensive lawyering — all arguing that prosecutors had clearly interviewed Francis as a witness in the case but failed to deposit transcripts or recordings of what he told them. It’s withholding evidence, the defense lawyers claimed, and proof that the pope is meddling in the case behind the scenes.

Prosecutors, for their part, argued that of course the pope spoke to them about the London deal, he authorized the investigation in the first place, but he hadn’t been interviewed as a witness once things got going — no records of any papal interview had been submitted as evidence because they simply didn’t exist.

The judges agreed, and noted that the prosecutor’s comment on the Perlasca tape was “completely generic and lends itself to multiple interpretations,” Reading the full transcript of the exchange, and not just the leaked clip, the court said it’s obvious that Diddi “repeatedly stated that what [Perlasca] said was denied ‘in the papers,’ that is, in the procedural documents already acquired” by the prosecution.

“It is evident that, since there were no minutes [of a meeting with Pope Francis], there could be no deposit [of evidence] and, consequently, no nullity can be recognized for the omission of this fulfillment,” they said.

Party of four

A lot of attention has been paid to the sheer number of defendants in the Vatican financial trial — 10 individuals and several businesses are facing charges. But less notice has been taken of the number of plaintiffs.

The criminal charges have been brought by the Vatican City State’s Office of the Promoter of Justice, but they have actually been joined by several institutions of the Holy See as civil parties, each claiming that the alleged crimes did them harm, and that they are owed damages.

Lawyers for the defense also filed a number of motions to exclude these civil claims from the trial, and to scale back the defendants’ possible liability if they are convicted.

In the front row of the civil claimants are the Secretariat of State itself, and APSA, the Holy See’s sovereign asset manager.

Both claim that the actions of former officials and advisors at the secretariat cost them money — more than 200 million euros just in the case of the London property deal alone, but also including investments in fake highways, and a number of other schemes which they claim seem almost designed to lose money.

Defense lawyers said that they can’t be sued by both APSA and the secretariat, since in January last year Pope Francis turned over control of all the secretariat’s assets to APSA. Pick a party, the lawyers argued: The people whose money it was at the time of the alleged crimes, or the people who control the assets now.

The judges didn’t agree, noting that both parties had suffered reputational damage and had legitimate claims to press. They did, however, clarify that in the event of convictions being handed down, there would only be one financial assessment for damages and the defendants wouldn’t be facing a double award against them.

The other two civil parties to the case are the IOR, the Vatican bank which first tipped prosecutors off to the London deal, and the ASIF, the Vatican financial watchdog. Lawyers for the defense argued that neither of these institutions had lost money, or been directly impacted by the criminal dealings alleged in the trial — so why should they be allowed to sue, they asked.

As for the IOR, the judges agreed with the bank’s lawyers that "the illegal use of sums destined for works of religion and charity, even belonging to other subjects, damages the interests of the IOR because this is one of the Vatican bodies that administer sums of this type and therefore suffers reputational damage.”

In other words, the alleged crimes of the defendants have brought the entire Vatican financial system into disrepute, and cast a shadow over the IOR’s work and management of legitimate funds for legitimate purposes, and that’s real damage.

Similarly, the ASIF, which has its two former top officers on trial for abuse of office, argued that its international credibility had been severely undermined, even if it wasn’t their money which had been misused.

In response, defense lawyers tried to argue that “reputational damage” wasn’t something you can sue over in the Vatican, and that Vatican City law only recognized “pecuniary damages.”

But that didn’t wash with the judges:

Vatican law “refers generically to ‘compensation for damage’,” they ruled, “and, according to the constant jurisprudence of this Court… there is no reason to exclude non-pecuniary damage, without prejudice of course to the need for rigorous proof of its existence and its quantification.”

The judges did take a tough line on which companies belonging to defendants could be sued by the IOR and ASIF, rejecting petitions from both institutions to go after businesses belonging to Enrico Crasso, Cecilia Marogna, and Raffaele Mincione.

On with the show

Believe it or not, that’s actually just a quick survey of the major points decided by the court on Tuesday. It was a forty page decision, with six separate rulings.

The good news is, the procedural preliminaries are finished now, and the next time the court meets there will be witnesses on the stand, answering questions about the evidence.

First up when the court next meets on March 17 is expected to be Cardinal Becciu — we’ll be watching, and you better believe we’ll bring you the details.

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