Time off for good behavior - Why Pope Francis changed Vatican's City criminal code
A Pillar Explainer
|The Pillar||Feb 17||8|
Pope Francis on Tuesday made a change to Vatican City’s criminal sentencing policy, and its procedure for holding criminal trials.
The change will affect how criminal trials are conducted, and how convicts serve their sentences. It comes as prosecutors gear up to bring financial investigations to court, and after the conviction of the former head of the Vatican’s Institute for Works of Religion, often called the Vatican bank.
So what is the law in Vatican City, what changed, and why does it matter? The Pillar explains:
It's helpful to remember that, while the pope is the supreme head of all three, the Church, the Holy See, and Vatican City are three distinct entities in law.
The pope, as Bishop of Rome, is the head of the universal Church and of the College of Bishops. In this role, he governs the global Catholic Church, which includes the 23 Eastern Catholic Churches in communion with Rome.
The Holy See, also called the Apostolic See, is the name given to the pope's global governing office for the universal Church, including the departments of the curia through which he exercises his authority. The Holy See is also a sovereign entity in international law — the pope’s independence from any secular nation state is recognized by the international community as a diplomatic fact.
The Holy See has permanent observer status at the United Nations, and sends ambassadors to different countries who in turn send their own ambassadors to the Holy See.
Vatican City is an independent city state with its own territory. Its primary function is to help ensure the freedom and independence of the pope, so that he is never resident in a country he does not govern, or subject to any foreign government.
Vatican City is an absolute monarchy; the pope possesses all legislative, executive, and judicial power.
The city state is governed, by the pope’s delegation, through the Pontifical Commission for Vatican City State, whose president is the leader of the Governorate of Vatican City. Those bodies relate to the pope through the Holy See’s Secretariat of State.
While canon law does apply to Vatican City, the territory also has its own civil laws, primarily defined in the “Fundamental Law of Vatican City State,” and through the terms of the Lateran Treaty between the Holy See and the Italian State.
The territory also has its own Code of Penal Procedure, governing how criminal trials are to be carried out and laying down the functions of the city’s judiciary in such cases. While the Vatican City state has a (very small) jail, under the terms of the Lateran Treaty, people serving long sentences can do their time in Italian prisons.
On Feb. 16, Pope Francis issued a motu proprio, a formal legal act issued as the Church (and Vatican City’s) supreme legislator. Titled Bringing Amendments in the Matter of Justice, it amends both Vatican City’s Code of Penal Procedure, and its laws concerning Vatican City judge and its promoter of justice (public prosecutor).
In the preamble to his changes, Pope Francis noted that updating the Vatican’s civil laws and procedures was a constant process, and that “needs [...] have emerged, even recently, in the criminal justice sector” which “require constant attention.”
While it is customary to provide a period of time between when a new law is promulgated and when it takes effect, the changes made this week came into force immediately.
Pope Francis made four notable changes to the law.
First, he set out a new system that allows people who have been convicted of crimes in Vatican City to have their sentences reduced if they have “behaved in such a way as to presume [their] repentance and [have] profitably participated in the treatment and reintegration program.”
Essentially, the pope allowed time off for good behavior.
The pope also created a legal mechanism for judges to agree with convicts on a form of community service and restorative justice plan as part of their sentence. These plans can include “the carrying out of public utility works, [and] voluntary activities of social importance,” meaning that, mayber, Vatican criminals could find themselves picking up litter around St. Peter’s square or working in homeless shelters run by the Vatican.
Second, Francis created new norms for dealing with no-show defendants at trial. Judges can now postpone a trial if the defendant is unable to attend for a legitimate reason, including “if due to mental infirmity he is unable to provide for his own defense.” Perhaps more interestingly, the new law also allows for a judge to order a case to proceed when a defendant refuses to appear in court without a valid reason, and for the defendant to be convicted in absentia.
As part of the same article of reform, the judge of a criminal case can authorize the “injured party” to launch a civil claim for damages against the defendant, even if the criminal trial is underway or delayed.
Third, the pope guaranteed social security and other civil rights to retired Vatican court officials.
The fourth major reform was to restructure the office of Promoter of Justice for Vatican City, significantly bolstering its independence and ensuring it is involved and appoints one of its own officials as the public prosecutor at every stage of appeal in Vatican City trials.
Why does it matter?
As the pope noted in his preamble, there are several recent and current cases which could be affected by the changes to the law.
Last month, Angelo Caloia, the former head of the Institute for Works of Religion (IOR), was sentenced to nearly nine years in prison for money laundering and embezzlement. His conviction was the first time a prison sentence was handed down for financial crimes in Vatican City. His lawyer, and the lawyer’s son also both received years in jail. All three are in the process of appealing.
The new provisions for time off for remorse, restitution, and community service could well be applied to Caloia’s case in the event his conviction is upheld; he is 81 years old, and his sentence of 8 years and 11 months would likely see him die behind bars.
In the past, popes have exercised their authority to pardon convicts or commute sentences, as Benedict XVI did in the case of Paolo Gabriele, the papal butler convicted of leaking confidential material to Italian journalists. But that would be hard for Francis to do in Caloia’s case.
Last year, the Holy See was inspected by Moneyval, the European anti-money laundering watchdog. While past inspections have offered praise for some Vatican reforms to end financial corruption and increase transparency, Moneyval has been clear that the failure of Vatican City courts to try and convict money launderers remains a point of real concern.
With a report from Moneyval due out in the next few weeks, the Vatican, and the pope, are unlikely to want to offer a pardon to their most high profile conviction, even if they don’t want to see him die in jail. A community service arrangement with restitution could be a way to reduce the sentence without negating the consequences of the conviction.
Looking ahead, the changes to court procedure allowing for defendants to be tried in absentia seem fairly squarely aimed at the case of Cecilia Marogna, the self-styled geopolitical analyst and security consultant accused of embezzling hundreds of thousands of euros from the Secretariat of State.
Last month, a Vatican City court dropped its attempt to have Marogna extradited from Italy shortly before a Milan appeal court was due to rule on the case. The Vatican looked likely to lose its bid to have Marogna sent to the Vatican to stand trial, and the decision to drop the extradition request was widely interpreted as a bid to avoid an embarrassing result. Nevertheless, prosecutors said they were ready to proceed to an “imminent” trial for Marogna and her as yet unnamed co-conspirators. With Tuesday’s reforms, they can now do so — whether she chooses to attend or not.
In the hierarchy of current Vatican financial scandals and investigations, Marogna’s case is a fairly small-dollar affair. But what it lacks in €‘s it makes up for in detail and its potential to be a window into other cases.
Marogna’s work for the secretariat has been characterized as operating a private global intelligence network for the disgraced Cardinal Angelo Becciu, who reportedly continued authorizing payments to her from the secretariat, even after he was moved to another department.
Finally, the provisions allowing for civil suits to proceed side-by-side with criminal trials in the Vatican could be an indication that the courts expect to finally move forward with charges in the London property financial scandal.
One of the key players in the deal, which saw the Secretariat of State pay in the region of 350 million euros for a property development in London’s upmarket Kensington area, is currently suing the Secretariat of State and some of its holding companies in the High Court of England and Wales.
Some Vatican watchers have speculated that the real purpose of the lawsuits could be to try to establish jurisdiction over the deal in the UK and prevent a Vatican trial from going forward. The changes to the law issued by Francis yesterday could spike that attempt.