What the Vatican court ruling means for papal sovereignty, and Cardinal Becciu
The ruling appears to subject papal acts of governance to the process of judicial review in the city state.
The ruling issued by the Vatican City Court of Appeal on Tuesday has threatened to send the nearly six years-long financial crimes trial back to square one.
Finding that prosecutors had no right to redact the findings of their original investigation into the London property scandal, the judges ordered effectively an unusual trial-within-an-appeal, opening up the original investigation and charges to new litigation.
But even more seismic was the court’s ruling that a rescript by Pope Francis, authorizing the original investigation in 2020, was effectively an invalidly placed law, rather than singular privilege or dispensation issued to prosecutors.
That ruling, believed to be the first of its kind, at least in the modern era, would appear to subject papal acts of governance to the ordinary process of judicial review in the city state. If left unchallenged, it could dramatically revise how papal authority is exercised in the Vatican.
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In the appellate court ruling on March 17, the three judge panel for Vatican City dealt with the numerous objections raised against the four rescripts issued by Pope Francis in 2019 and 2020 which effectively authorized the investigation into the London property fiasco at the Secretariat of State, which became the sprawling financial crimes trial.
Those four rescripts were disclosed during initial filings with the city state court at the time charges were brought.
They included two papal acts dated July 2, 2019. The first of these authorized officers at the Institute for Works of Religion, the Vatican’s commercial bank, to conduct their own internal confidential investigations, and specifically exempted them from reporting to other Vatican authorities, most especially officials at the Secretariat of State, turning over their finding to the Office of the Promoter of Justice.
The second authorized the city state’s public prosecutors’ office to conduct its own investigation by means of “summary proceedings” with the power to adopt whatever “precautionary measures” might be judged necessary.
The third rescript, dated July 5, specifically authorized electronic surveillance of suspects, and the fourth, dated Feb. 13 the following year, extended the previous wire-tap authorization for an additional 60 days.
While all four rescripts were repeatedly challenged by lawyers for the defense during the initial trial, the judges at appeal dismissed out of hand all complaints against three of the four, in the end considering only an argument against the July 2 authorization for the Office of the Promoter of Justice.
According to the judges, while this act of Pope Francis was presented as a “rescript” it was, they reasoned, actually a legislative act. The distinction being that a rescript, as an executive act, grants a specific dispensation from some aspect of the law, while legislation — as the creation of new law — requires different procedural steps to take effect.
The judges reasoned that when Francis ordered that “for the necessary investigative activities, the Office of the Promoter of Justice shall proceed in the form of summary proceedings,” this provision had “an innovative character compared to the provisions in force at the time,” which required a formal investigation to be conducted.
“Consequently, this Rescriptum, as correctly stated by the Court, must be recognized as having a legislative nature. Precisely because of its direct and immediate impact on the current legal system, it should have been published or, at least, brought to the attention of those against whom acts or provisions were adopted that found their legitimacy in it.”
In sum, the judges found that Francis may have thought he was granting special permission to do something but, they decided, he actually created a new legal category of investigative action. As such, the pope needed to publicly promulgate the change — even if not making clear he was doing so with a particular case in mind or even keeping who was using the new law and why confidential.
Because of this, the judges ruled, “the failure to publish the Rescriptum on 2 July 2019 affected the legitimacy of some investigative measures adopted on the basis thereof.”
The ruling is highly controversial, in that it appears to undermine a fundamental tenet of canon law, which itself is the recognized interpretive framework for Vatican City law: that papal acts of governance are not subject to any legal challenge or review.
The judges appeared to attempt to skirt this issue by stating in their ruling that “these findings do not, nor could they, affect the value and nature of the Rescripta. They are, in fact, the legitimate form of expression of the powers of the Supreme Pontiff, to whom Article 1 of the Fundamental Law of 26 November 2000 (in force at the time of the issuance of the Rescripta) recognizes the fullness of legislative, executive, and judicial powers.”
However, for many legal observers, the upshot of the judges’ ruling is that their findings directly challenged and “affected the value and nature” of the July 2 rescript, even if they attempt to locate the effects downstream in the legitimacy of the prosecution’s subsequent investigation, rather than in the rescript itself.
The substance of the decision is potentially seismic, in that it appears to rule that papal acts of governance are not self-defining — that is, a rescript isn’t necessarily a rescript just because the pope says it is — and that a separate judicial authority has the power to rule them procedurally ineffective.
This notion of judicial review for direct acts papal governance isn’t just unprecedented in canon law and Vatican practice, some would argue it is directly prohibited. Last year, the same appellate court heard arguments in another case asserting exactly this premise.
In a ruling last July, the appellate court rejected an appeal by Libero Milone, the former auditor general of the Vatican, in his bid to sue the Secretariat of State for wrongful dismissal.
In the course of the appeal hearings, the secretariat argued that since Milone was appointed by Pope Francis, his suit for wrongful termination was legally an attempt to appeal a decision of the Roman Pontiff which was itself illegal.
The secretariat’s lawyers argued that 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.
Judges in that case found that the text of Milone’s letter of appointment did not include the necessary legal language to make it a personal, and therefore unappealable, papal act — central to this finding was that the letter of appointment was signed by Cardinal Pietro Parolin, not Pope Francis.
At both the initial trial and at appeal, the judges in Milone’s case agreed, however, with the legal premise that a direct papal act is beyond appeal or review by the court — but Tuesday’s ruling the city state’s judiciary has now effectively set a new standard, allowing for the review of personal papal acts on procedural grounds.
The March 17 decision follows considerable pressure from defence attorneys and sympathetic commentators who have argued since the trial began that papal sovereignty in the city state effectively rendered its judicial system illegitimate. The trial’s star defendant, Cardinal Angelo Becciu, has himself stated that the lesson of his legal process is that “it will be necessary to clarify the exercise of papal authority.”
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Of course, the pope remains the head of state in Vatican City.
“In the context of Vatican City State, the task of administering justice takes on a particularly relevant meaning,” Leo told the city state’s judges on Sunday. “The administration of justice is not, in fact, limited to the resolution of disputes, but contributes to the protection of the legal order and the credibility of institutions. The observance of procedural safeguards, the impartiality of the judge, the effectiveness of the right of defence and the reasonable duration of proceedings are not merely technical instruments of the judicial process. They constitute the conditions through which the exercise of the judicial function acquires particular authority and contributes to institutional stability.”
“In a legal system such as that of Vatican City State – which serves the mission of the Successor of Peter by safeguarding the independence of the Holy See, including in the international sphere – this function takes on even greater significance,” Leo said.
The pope, elected to succeed Francis last year, is himself a trained canonist and has already shown himself to be concerned with a more technical and precise adherence to law. For many, this has been seen as a notable point of difference between Leo and his predecessor, who often appeared willing to dispense with legal norms and processes as a matter of course.
The sensitivity of the March 17 ruling, which effectively erects a standard of judicial review for papal acts, is unlikely to be lost on Leo, though there is no way of knowing if the pontiff had prior knowledge of the court’s decision.
Given the unprecedented nature and substance of the ruling on the July 2 rescript, it is not possible to say what an “ordinary” expectation or response would be.
However, it seems reasonable to speculate that if the Office of the Promoter of Justice were not otherwise already mired in controversy — Diddi himself is formally recused from the appeal process — the prosecutors’ department might have been expected to test the ruling at Vatican City’s supreme tribunal, the Court of Cassation. And it remains possible that one of the civil parties to the case, the Secretariat of State for example, could make such a challenge.
But, absent any institutional move to test the legal premise of the judges’ decision at a higher level, the working assumption will be that Leo agrees with the judges’ assessment of Francis’ act, or at least is content to allow it to stand unchallenged.
It is even possible that the pope considers the somewhat self-contradictory argumentation of the judges, that Francis’ act was simultaneously a “legitimate form of expression of the powers of the Supreme Pontiff” but also — because of its poor wording and procedure — led to illegitimate results, to be the best possible way of addressing the situation without completely undermining the principle of papal sovereignty.
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It remains to be seen what the ultimate effects of the judges’ decision on Tuesday will be.
In the specific case of the Vatican financial trial, the reopening of litigation on the findings of the original investigation by the Office of the Promoter of Justice leaves open several possibilities for how things could play out in court, and what the judges might ultimately decide.
With prosecutors now ordered to deposit the unredacted files of their investigation, there is the distinct possibility new evidence of prosecutorial misconduct could come to light, further tarnishing the reputation of the controversial and already embattled head of the office, Alessadro Diddi.
But how far that possible outcome might in turn extend into the ultimate results of the trial remain unclear.
Much of the evidence used to convict Cardinal Becciu, for example, did not appear to come from initial confidential investigations but from publicly known and reported collaborations with Italian state authorities, and even allowing for the possibility judges could vacate some of the charges and convictions, it would be remarkable for the entire case against the cardinal to collapse.
Indeed, while the appeal judges disagreed with the first instance court on prosecutors’ justification for withholding some findings and files from the initial investigation, it is worth noting that judges in the first trial went out of their way not to affirm the basic theory of the case put forward by the prosecution, or its more contentious witnesses and evidence.
Should the appellate judges return a kind of mixed ruling on the original charges after reviewing new evidence and arguments beginning in June, it is possible they could leave multiple charges and convictions intact for the nine defendants.
Over what timeline this will all play out will only become clear in June, when the court reconvenes to schedule new hearings. Even then, while the financial crimes trial is not exactly starting over, it will head into its seventh year with no clear end in sight.