In the Vatican, it seems, despite all contrition, one is also a little proud of the first major criminal trial, which opened there in July before the secular court of first instance.
After all, the trial against Cardinal Angelo Becciu and nine other defendants should show the world public that the legal culture at the center of the Catholic Church has surpassed the level of a banana republic.
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The message that Pope Francis wants to convey is obvious: a cardinal's hat is no longer a stop sign for Vatican investigators. But the process of a € 350 million investment in London property under dubious circumstances could prove to be a boomerang for the Vatican. And not only because further details about a very free handling of donations from the Peterspfennig collection may be revealed.
Already in the first session it became clear that the process raises fundamental questions about the constitution of the Vatican State. The decisive one is: Can a process even be carried out in an absolute monarchy like the Vatican State that even halfway meets modern constitutional standards? The Pope is head of state, supreme judge and supreme legislator at the same time. He can intervene in a procedure and change laws at any time.
The defense also stated that Francis had intervened directly in the investigation four times by issuing decrees and changed Vatican law specifically for this process. That violates the rule of law. As a particularly serious violation, she assessed the fact that Francis had allowed the public prosecutor in July 2019 to take every precautionary measure necessary for the investigation, "if necessary, in deviation from the applicable regulations". That was a blank check for the Vatican public prosecutor, for example in the event of arrests.
It was obvious to everyone that the law was adapted specifically for this process when the Pope decreed in May that cardinals and archbishops could in future also be judged by non-clergymen. Without this change, Cardinal Becciu would have had to answer in a separate procedure directly before the highest secular court in the Vatican, in which cardinals and archbishops act as judges. However, the Pope wanted to avoid the impression of a two-tier judiciary.
The accusation of a lack of the rule of law is not without explosiveness for Francis.
Because he regularly appears as an advocate for the rule of law;
most recently in February of this year in a keynote address to the diplomatic corps when he called for the rule of law to be respected in democratic societies.
The law must "be guaranteed by the higher-level organs regardless of prevailing political interests".
The spiritual dimension of power
The Vatican public prosecutor Gian Piero Milano did not want to accept the objection of a lack of rule of law in the Vatican. The contested decrees are "the highest expression of papal power". Anyone who only looks at these papal acts from the “perspective of a layperson” runs the risk of misunderstanding their true nature, explained the Italian lawyer, who has made a name for himself as a mafia hunter.
What was meant by this was that one had to take into account the spiritual dimension of the papal office and the Vatican. The defense didn't want to follow suit. The problem is that the Vatican State is ruled by an absolute monarch, and the only way to change the law is "for the revered St. Ignatius to give the Pope an inspiration," scoffed a defender, referring to the Jesuit Francis Order was founded by St. Ignatius of Loyola.
But not only the Vatican constitution, also the Vatican law makes it difficult to conduct a process based on the rule of law.
Because the Vatican is a legal curiosity: In the papal state, the Italian criminal law of 1889, the so-called Codice Zanardelli, has been in force in the papal state since it was founded in 1929, although in Italy it was replaced by a new criminal law as early as 1931.
The Italian criminal procedure law from 1913, which has long since become obsolete, is also binding for the Vatican State to this day.
The rights of the defense are very limited by today's standards.
Does the Vatican still retain a special position?
Over the decades the popes have modernized the law inherited from Italy in some points, but no fundamental reform has taken place to this day. To make matters worse, large parts of the law in the Vatican have so far not or hardly been applied because there was a lack of processes. That should make it easy for the defense to drag out the process.
Except for Cardinal Becciu, who is charged with embezzlement, abuse of office and inducement to give false testimony, none of the accused is apparently a Vatican citizen. They are Italian and Swiss citizens. If they were sentenced to imprisonment, Italy and Switzerland would have to decide whether they would comply with an extradition request from the Vatican. Since a process that fully complies with international legal standards seems difficult to imagine, the judiciary in both countries would be faced with a delicate question: is it prepared to grant the Vatican a special status in secular jurisprudence as well? If both countries were to refuse extradition because of deficits in the rule of law, it would be an embarrassment for the Vatican and the Pope.