The Catch-22 of Vatican City justice

If the former Vatican auditor loses his wrongful dismissal suit, his appeal may end up proving a systemic flaw in Vatican City justice

The Vatican’s former auditor general filed an appeal Tuesday, against a Vatican City court’s January decision to reject his wrongful dismissal lawsuit.

Interior of the hearing room of the Vatican Tribunal. Credit: Vatican media.

The case of Libero Milone, who was forced from office in 2017 under public threat of prosecution, remains a thorn in the side of the Holy See as it tries to move past the financial scandals of the last five years which have already seen a cardinal sentenced to years in prison.

But what hope, realistically, does the former auditor have at appeal? 

Increasingly, the auditor seems trapped in a legal catch-22, where every proof of injustice in his case becomes a legal technicality to deny him compensation. 

And if Milone loses his case to prove he was wrongfully hounded from office, his lawsuit may end up proving a systemic flaw in Vatican City justice.

—

In a Jan. 22 decision, the Vatican City’s rejected the claims brought by both Libero Milone, the former auditor general of the Vatican, and by his recently deceased former deputy, Ferruccio Panicco, over their ousting from office in 2017.

The men sought damages of millions of euros for loss of earning and reputation, contending that they had been forced from office for being too good at their jobs and uncovering high-level curial financial corruption, including what became known as the London property scandal.

At the time of their departure from office, both men were detained for hours by Vatican City gendarmes and threatened with prosecution if they refused to resign their posts. 

Speaking publicly at the time, then sosituto of the Secretariat of State, Cardinal Angelo Becciu claimed credit for their forced departure, accusing Milone of “spying” on his personal finances, and confirming he would have had Milone face criminal prosecution in Vatican City had he not resigned.

Last year, in a separate Vatican City case, Becciu was convicted of abuse of office and embezzlement, and sentenced to five and a half years in prison. 

However, while the court did not conclude that Milone and Panicco had been rightly forced from their jobs in 2017, the judges rejected the argument that the Secretariat of State was liable for their ouster, loss of earnings, and subsequent damage to their reputations.

Instead, the judges ruled that Milone’s own narrative of his ouster placed responsibility on the senior leadership of the Vatican City corps of gendarmes, which did not create a chain of liability for the Secretariat of State, despite the then number two official in the department Cardinal Becciu’s publicly acknowledged involvement.

If Becciu could be held responsible for orchestrating Milone’s resignation under threat of criminal prosecution, the judges found, it would be ipso facto an illegal act and an abuse of office; the Secretariat of State as a department could not be held liable for criminal acts committed by officials, ruled the court.

For many of those who have followed the slow progress of Vatican City justice in the financial crimes scandals of the last decade, the Milone result appeared like a deliberate exercise in legal sophistry to deny justice to the scandal’s most obvious individual victims:

A tribunal of the same court, including the same chief judge, ruled in December to convict Cardinal Becciu and half a dozen other officials and advisors around the Secretariat of State of abusing their offices and swindling millions from the Church. 

Yet a month later, the court found that the men who first detected the crimes — in the line of their official duties — were owed nothing for having their careers ended and, in the case of Panicco, his life materially shortened. 

On the contrary, the court ordered Milione and Panicco’s estate to pay more than 100,000 euros in court fees.

Given that Milone now faces a higher court of appeal, what prospects does he really have for securing a different result? The rational answer would seem to be “not many.”

—

The tribunal which will hear Milone’s appeal has yet to be constituted, since the appeal was filed while the Roman curia is away on its annual Lenten retreat. But unlike the initial court, the appeals terna is likely to feature at least some clerical judges.

The Vatican City Court of Appeals, as currently constituted, has judges drawn from the Roman Rota — the Church’s highest canonical judicial court of appeal — though it also has lay judges available to be appointed to cases.

There is no reason to suspect that clerical rotal judges would be improperly disposed against hearing Milone’s case for appeal. On the other hand, there is no obvious grounds to expect them to dispute the lower court’s legal reasoning either. 

But whoever the judges, it would be surprising to see a break with the previous verdict, especially given the sensitivity of the legal issues at play. And those issues have Milone’s legal team arguing in a kind of legal catch-22.

During his initial lawsuit hearings last year, lawyers for the Secretariat of State initially argued that Milone had “no working relationship” with the secretariat, since Milone was under contract with the Council for the Economy — a separate Vatican department.

But documents obtained by The Pillar showed that while Milone was appointed to his former office by papal, the decree naming Milone to the role was issued by the Secretariat of State and signed by Cardinal Pietro Parolin, as the Secretary of State.

Still, the secretariat’s legal team counter-argued that because Milone’s Vatican department was constituted by Pope Francis and meant to report independently to him, the Secretariat of State could not be cited in his wrongful dismissal claim. 

The secretariat’s lawyers argued, Milone could only be appointed or dismissed by the pope personally, and his loss of office was covered by canon 1404 of the Code of Canon Law, which bars appeals against personal acts of the pope.

That argument was rejected by judges last year, who found that the text of the appointment did not include the necessary legal language to make it an unappealable papal act. 

But it is at the crux of the legal limbo in which Milone’s case seems to be trapped — namely that it is impossible to argue he was treated unfairly by the Secretariat of State without also bringing  Pope Francis’ involvement into the equation. Doing that could, paradoxically, prove Milone’s claims he was institutionally mistreated by the Vatican, but place his claim beyond the court’s jurisdiction.   

During his own criminal trial, Cardinal Angelo Becciu argued that he was correct to have shut down investigation into his financial crimes by Milone and his team since, the cardinal claimed, the auditor’s remit did not extend to the Secretariat of State, which was supposedly senior to him.

But that argument was denied by Becciu’s own former department in the course of Milone’s lawsuit, when the Secretariat of State conceded that the relationship between Milone former department and the secretariat was “the relationship between the ‘entity that provides to the audit of the financial statements’ (the Auditor) and the ‘entity subject to audit’ (the Secretariat of State).”

But in admitting to his organizing role in Milone’s ouster, Becciu also claimed he was acting on the explicit instructions of Pope Francis. 

The disgraced cardinal told the court in May last year that it was Pope Francis who made the decision to fire the Vatican’s first auditor general, Libero Milone, in 2017, and asked Becciu to get rid of the auditor as a “thankless task.”

In June 2017, Becciu said, he was called to a meeting with the pope and instructed to tell Milone that “as of today he no longer enjoys the Holy Father's confidence” and that “he must resign.”

On June 18 of that year, Milone’s offices were raided by Vatican police and Milone was interrogated for nearly 12 hours, after which he resigned. Milone said at the time that he was compelled to resign and threatened with criminal prosecution by Becciu if he did not.

Later in 2017, the pope appeared to acknowledge his involvement in Milone’s ousting when in his 2017 Christmas address to the curia, Francis made a thinly-veiled reference to Milone’s sacking when he spoke about “persons carefully selected to give a greater vigour to the [curial] body and to the reform, but – failing to understand the lofty nature of their responsibility – let themselves be corrupted by ambition or vainglory. Then, when they are quietly sidelined, they wrongly declare themselves martyrs of the system, of a ‘pope kept in the dark,’ of the ‘old guard’[…] rather than reciting a mea culpa.”

As this pertains to Mione’s lawsuit and appeal, the legal argument for culpability becomes somewhat circular.

If, as judges have previously ruled, the decree of Milone’s appointment was signed by Cardinal Pietro Parolin as Secretary of State on vicarious papal authority, but not within the narrow legal scope of an unappealable personal papal act, the Secretariat of State is a legitimate respondent for his wrongful dismissal claim if he was fired by an official at the same department.

But if Milone was forced from his office by Cardinal Becciu in an act of abuse of office, the court has also found, the Secretariat of State is not institutionally liable for his criminal conduct in office.

However, if — as Cardinal Becciu has claimed — he orchestrated Milone’s forced departure at the specific instruction of Pope Francis, then Becciu was acting in his role as sostituto. This reopens both the case for institutional liability for the secretariat, but also the argument for the whole affair being an unappealable act of personal papal authority.

While it is not clear yet what legal argumentation Milone’s team will deploy at appeal, they will have to thread the narrowest of needles trying to convince the judges that Becciu was acting in his official capacity, as proved by the pope’s supposed involvement, but without so formally laying final responsibility with Francis that it because an unappealable papal act.

The only way possible to make this case, it would seem, would be to convince the court that Becciu hoodwinked the pope into approving Milone’s surveillance and detention by Vatican City law enforcement and forcing his departure from office under false pretenses. 

But in so doing that could once again allow the judges to rule Becciu was acting criminally to abuse his office, thereby shielding the secretariat from legal responsibility.

—

Milone’s case has evolved into a complicated but illustrative example of the Holy See’s problems with financial scandal, and the difficulties posed by Vatican City’s constitutional arrangement.

Constitutionally, Vatican City functions as an absolute monarchy. While this is often portrayed as an unacceptable anachronism in the age of liberal democracy, arguably it is the only way a microstate with a tiny, usually temporary and transient, citizenry could function.

More to the point, since the territory of Vatican City exists only to guarantee the temporal sovereignty and independence of the Holy See, its civil government must ultimately reflect the fundamental ecclesiology of the Church, in which the first see is judged by no earthly authority.

While it is a commonly held legal maxim that no one should be above the law, doctrines of executive privilege and immunity in office are also widely accepted, albeit within limits. But those limits present a real problem when considering the dual nature of the papacy as both a temporally and spiritually sovereign.

Virtually no act of papal administration can be conceived as having no arguably spiritual aspect, since, according to canon law, the entire existence of the Church’s temporal possessions and jurisdiction is meant to serve its spiritual ends. Making the pope’s temporal governance subject to judicial review or even sanction is, therefore, to make his spiritual authority subject to the same appeal.

The fundamental argument against unchecked executive power is that it leads to tyranny and injustice, and in Milone’s case there is an argument that the auditor has been subjected to both. But the counterbalance to these risks in the Church is meant to be spiritual and pastoral, rather than legal; that authority is exercised with charity and humility.

When the limits of the former become clear, the theory is supposed to run, the authority of the Church can and should recognize the need for redress and justice, and act accordingly, out of a spirit of service to the common and higher goods, rather than out of legal compulsion.

But, as the Milone case has shown, that doesn’t seem to be happening. 

Despite dozens of meetings with high-level Vatican officials since his ouster, and repeated offers for an out of court settlement, Milone’s avenues for redress seem to be narrowing even as the justice of his claim that he was illegitimately forced from his role and publicly vilified becomes more obvious.

If he is unable to secure justice through the Vatican City courts, Milone has promised to make public hundreds of pages of documents he claims prove systematic financial misconduct at the highest levels of the curia. 

He would only do so, he has said, to prove his basic claim that he was ousted from his job for doing it too well. If and when he is forced to take that step, he could prove many Catholics’ worst fears about curial corruption.

But in backing him into that corner, the Holy See could also end up proving something arguably worse: that there is no justice in the Vatican.