On Vatican trial, Pope 👏Francis 👏 didn't 👏 'change the law' 👏

Financial crimes trial critics fail do the Vatican justice

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The Vatican City financial trial may have ended three months ago, but the PR battle over its results is still being waged.

Pope Francis. Alamy stock image.

Claims about the illegitimacy of the court, the trial, and the prosecutions’ methods have been a key feature of the trial from the moment it formally opened in July of 2022 — both from defense lawyers and in media comments from those sympathetic to the defendants, most especially the disgraced former papal chief of staff, Cardinal Angelo Becciu.

The most recent round of criticism came via a report published by AP on March 19, which repeated some of the most enduring claims against Vatican due process.

The governing structure of Vatican City, with the pope ruling as absolute monarch, can throw up unique challenges for the administration of justice — and it has, in some connected cases. 

In Becciu’s case, the same criticisms keep being repeated: that Pope Francis “changed the law” to deny the defendants due process, that prosecutors have withheld exculpatory evidence, and that Vatican judges are incapable of acting impartially.

But is there any real substance to the claims? Or are they just the product of good PR for the defense? And will they carry any weight during the pending appeal process?

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In a news report Tuesday, the Associated Press reported on “stinging academic critiques” of the trial’s “violations of basic defense rights and rule of law norms” by “prominent lawyers.”

“The opinions cite Pope Francis’ role in the trial, since he secretly changed Vatican law four times during the investigation to benefit prosecutors,” AP asserted, before summarizing a slate of opinions presented in the University of Milan’s legal journal, and leading off with a legal opinion from Geraldina Boni, a law professor, and consultant to Becciu defense team.

As a consultant for Becciu’s legal team, Boni has obvious interest in making a case for the defense, of course. And she alleges that the four rescripts signed by Francis between July 2019 and Feb. 2020, gave investigators “essentially, and a bit surreally, ‘carte blanche’” to carry out their work without judicial oversight.

But how accurate is this?

For a start, the popular formulation — repeated by AP on Tuesday — that Pope Francis “changed Vatican law four times” has been echoed by sources as varied as Becciu’s own legal team and his chief antagonist in Vatican finances, the late Cardinal George Pell writing under the pseudonym “Demos” in 2022. 

But it is not, as a technical matter, correct. 

Francis issued four rescripts — technical legal instruments — which are of their nature acts of executive, not legislative power, and which grant exceptions to the standing law in specific cases. The very nature and purpose of a rescript is that it doesn’t “change the law,” but allows for flexibility in unusual cases.

In this case, the law to which Francis granted an exception was the ordinary reporting mechanisms of Vatican law enforcement investigations. But while Boni and others maintain this amounted to a violation of due process, it’s perhaps more plausible to argue it was an essential step for Vatican justice to function credibly.

In July 2019, the senior leadership of the IOR, Vatican City’s commercial bank, reported to the pope that they had received a suspicious request from the senior leadership of the Secretariat of State who first asked for, then demanded, a loan of 150 million euros to cover the acquisition of a London building from their erstwhile investment manager, Raffaele Mincione.

The bank’s leadership rejected the loan application and flagged it as suspicious, leading first to pressure from both the Secretariat of State’s leadership and the heads of the Vatican’s own internal financial watchdog the ASIF, and then extra-legal retaliatory action from the secretariat.

Under pressure from the very people to whom they were supposed to report suspicious activity, the bank’s officials went straight to Vatican City prosecutors, and together they took the matter to Pope Francis, leading to the often invoked — but rarely understood — rescripts.

Those papal executive orders allowed for an investigation to begin and dispensed it from following just one Vatican law: Vatican investigators could “act in derogation from the [normal] reporting obligations to other State Authorities.”

Those “other state authorities” included the same departmental officials at the Secretary of State who were the subjects of the investigation — Francis essentially told investigators they did not have to report on their progress to the people they were investigating. 

In another rescript, Francis allowed prosecutors to use “for judicial purposes” “all documents and materials — paper and electronic — seized during the preliminary formalities carried out to date,” and waived “any obligation of [state] secrecy being enforceable.”

In other words, while the media keeps claiming that Francis’ made egregious “changes to the law,” he basically did two things: 

First, he waived state secrecy laws which could have shielded criminal activity from prosecution.

Second, he dispensed from an otherwise standard legal obligation, so that investigators would not be required to report on their methods and progress to the people they were investigating. 

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According to Boni, since the officials being investigated “were completely unaware of the prosecution’s new investigative powers” they were “unable to reasonably foresee the effects of their actions.” 

In other words, the suspects were at a “substantial and onerous disadvantage” because they weren’t told they wouldn’t have ordinary legal oversight of any investigation into their own actions and couldn’t hide behind state secrecy laws, which left them to keep acting in legally suspect ways without realizing they could be caught.

That’s one way to argue it, I suppose. 

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But even accepting that somewhat contentious premise, some might question Boni’s assertion — again reported by AP —  that Francis’ use of the same rescripts to authorize electronic surveillance of the suspects  — something which most people would recognize as a normal part of criminal investigations —  amounted to giving investigators “carte blanche.”

On the contrary, Francis ordered prosecutors to work with the Vatican’s official police service on the operation, again with the caveat that they didn’t need to report to subjects of the investigation, only “for a duration of 30 days,” and which he only renewed once  — more than six months after the initial warrant lapsed.

Ironically, Boni argues that “the equality of arms” between prosecutors and defendants is a cornerstone of a fair process. 

Yet as the trial proceedings made clear, it seems rather that it was the prosecution who operated at a disadvantage when it came to wiretaps and surveillance. 

Senior current and former Secretariat of State officials admitted in court to serial extra-legal electronic spying, including using outside contractors, with the star defendant Cardinal Becciu shown to have illegally recorded phone calls with the pope discussing state security matters with a view to coercing him into intervening in the trial.

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While they’re hazy on the details of what Pope Francis actually authorized, the legal critics of the Vatican investigation and trial have made clear that the pope’s involvement at all was, for them, the real problem.

It’s inarguable that Pope Francis loomed large in the trial, not least because Secretariat of State officials roped him in to give the final OK to the end of the London property deal. 

And, in the course of the trial, Francis made available to the court evidence in the form of personal letters and other documents whenever relevant, and effectively waived executive privilege to ensure the trial could take place at all.

The pope has, however, stopped short of appearing as a witness, or acting as a judge in the case, with the intention of allowing the judicial process to unfold independently. 

But, according to Paolo Cavana, a law professor at Rome’s Libera Università Maria Ss. Assunta, it doesn’t matter.

Cavana also published a critique in the same academic journal as Boni’s analysis, his assessment was also sampled by Tuesday’s AP story.

In his evaluation, Cavana flagged the “the pervasive character of the pontiff’s powers” in Vatican City governance and argued that the pope’s four rescripts placed “a strong pressure about the outcome of the trial itself” — essentially telegraphing a papal demand for convictions.

But some observers might question if allowing an investigation to proceed is the same thing, legally or morally, as signaling a desired result.

In the case of the four rescripts, it is worth noting that no other Vatican judge could have signed them, given that they pertained not only to Vatican City state matters but the sovereign functions of the Holy See — an important legal distinction in both Vatican and international law but one often lost on commentators.

Simply put, while a Vatican City judge might have been able to authorize the two electronic search warrants issued by Francis (and making up two of the four contentious rescripts), no Vatican City judge apart from Francis would have the legal authority to authorize the investigation to proceed independently of the Secretariat of State, or waive state secrecy laws.

While the pope’s role as supreme executive, legislative, and judicial authority might make lawyers and commentators used to liberal democracies uncomfortable, that’s not the same thing as saying his involvement makes justice impossible. 

On the contrary, had the pope not acted in the way he did with the four rescripts, the investigation and trial would have been impossible — legally speaking — and Francis could have reasonably been accused of impeding justice through inaction.

Instead, the one actual change to relevant Vatican City law which Francis did make was to remove the legal privileges of cardinal’s (like Becciu) which excused them from standing trial in ordinary Vatican City court and reserved their cases to clerical courts made up of their peers.  

If Francis wanted a particular result, and was indeed seeking to influence an outcome, it would have been far easier to let the case proceed before an ecclesiastical star chamber of cardinals, rather than in open court before a panel of lay judges with otherwise excellent secular legal careers behind them.

Instead, the three judge panel took frequent issue with the prosecution’s arguments and submissions during the course of the trial. 

While the court did issue a slate of guilty verdicts along with some hefty prison sentences, several others amounted to slaps on the wrist for minor infractions. And the judges essentially rejected the prosecution’s central contention — that all ten defendants were part of a single, coordinated conspiracy. 

If, as those close to the defense team seem to argue, Pope Francis did want the court to ratify his preferred and predetermined outcome, many might expect those arguments to at least consider that the actual result — in which the prosecution is also appealing the decision for being too lenient — seems hardly made to order.

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A common theme running through legal criticism of the Vatican financial trial is that it does not stack up well against European Union jurisprudence or norms. 

It’s an argument advanced by both Cavana and Boni, who argues in her 135 page article for an appeal to Strasbourg’s European Court of Human Rights on the basis of a supposed violation of Art. 6 of the European Convention of Human Rights, treating the right to a fair trial, while noting the Holy See isn’t “technically” a signatory to the convention or a subject of the court.

Tuesday’s AP report also quotes UK lawyer Rodney Dixon making a similar argument. 

Dixon, who was engaged by Raffaele Mincione, another of the convicted defendants, pointed out that the court rejected several attempts by Mincione to cite witnesses he has said would demonstrate his innocence.

Mincione was essentially found guilty of investing money which, under Vatican law, was not supposed to be available for investing, and he was supposed to know that.

The investment manager has also long argued that if he was supposed to know where the Vatican’s money was coming from, and verify it was available for investment purposes, the same burden should fall on the bank which brokered his business with the Vatican and introduced them in the first place, Credit Suisse. But, as Mincione has pointed out, the bank was not cited in the case, either as a defendant or for witness testimony.

While it remains to be seen if the Vatican City appeals court will take a different view of Mincione’s arguments, if they do not, a more plausible hope of a different result probably lies in London and Luxembourg, not Strasbourg — whatever Dixon, Boni, or Cavana might want to argue.

Before charges were even filed against Mincione in Vatican City, he filed suit against the Vatican Secretariat of State in the UK, asking for judgment that he had dealt plainly and fairly with them, and he’s seen good progress with the case thus far. 

In a separate round of legal action, Mincione’s company has also claimed that Credit Suisse and Citco, a private banking and investment firm headquartered in the British Virgin Islands used by the Vatican Secretariat of State, “failed to divulge crucial information about the origin of the money.”

A result for Mincione in either of those cases would be a far more damaging blow to the credibility of the Vatican trial and decision than what amounts to friendly press in academic journals from lawyers linked to the defense teams.

But even if Mincione does prevail elsewhere, those same results would be unlikely to do much for his co-defendants like Cardinal Becciu, whose own brother is now facing criminal charges in Italy in connection with the Vatican trail.

Getting back to the credibility of Vatican justice, and setting Mincione’s case apart, there seems to be little real substance to much of the most common criticism beyond a general discomfort that Vatican City is an absolute monarchy, not a liberal democracy.

While that might make for easy copy, it’s unlikely to stand up in any court.