ROME – Last Tuesday, the Vatican’s civil tribunal finally released what are known in Italian as the motivazioni, or “motivations,” for its December 2023 findings in the so-called “Trial of the Century” which pivoted on a disastrous $400 million purchase of a London property by the Secretariat of State, and which ended with guilty verdicts for nine defendants, including Cardinal Giovanni Angelo Becciu.
The motivazioni represent the detailed reasoning, both in fact and law, behind the court’s findings. Given the complexities of the London affair, it’s perhaps no surprise they came almost 11 months after the fact and run to a robust 819 pages. Their real significance is that they allow appeals finally to move forward, since they were frozen so long as prosecutors and defense attorneys had no way of knowing what, precisely, they were appealing.
For anyone who isn’t personally involved in the case, however, perhaps the most interesting section of the motivazioni comes near the beginning, in the form of a detailed response to charges raised during and after the trial that the Vatican judiciary is not independent, and therefore its rulings do not meet contemporary standards of due process.
Mounting an argument for such independence is, to say the least, a tall order. By law, a pope possesses supreme executive, legislative and judicial authority in the Catholic Church, meaning there simply is no such thing as a separation of powers. To claim that Vatican courts are “independent” is, therefore, a bit like claiming the sun revolves around the earth.
Nonetheless, the motivazioni make a game effort.
The case is largely premised on a motu proprio issued by Pope Francis in March 2020 and modified in April 2023, which states that “magistrates are nominated by the Supreme Pontiff and, in the exercise of their functions, are subject only to the law,” as well as, “magistrates exercise their powers with impartiality, on the basis of, and within the limits of, the competences established by law.”
Those are noble ideals, and by all accounts, the justices on the Vatican tribunal, especially presiding judge Giuseppe Pignatone, take them seriously. Pignatone is a veteran Italian jurist with a generally stellar reputation, despite the fact he’s presently under investigation over suspicions that forty years ago he was complicit in illegitimately closing a probe into the mafia when he was an assistant prosecutor in Palermo, Sicily.
The problem with the argument in the motivazioni, however, is that ideals are one thing, structures another. Consider the following three structural points about the Vatican judicial system.
First, not only does the pope hire his judges, he also has the power to fire them. That March 2020 motu proprio also states, “The Supreme Pontiff may dispense magistrates from service, even temporarily, who, due to proven incapacity, are unable to perform their duties.”
For the record, it’s up to the pope to decide what counts as “proven incapacity.” Though there’s no evidence that a modern pope has ever used that power to punish a magistrate for ruling against the pope’s desires, the fact remains that a pope could do so, and there’s nothing structurally to prevent it.
Contrast that, for example, with the United States. While a president can appoint federal judges, he or she can’t fire them. That requires an impeachment by the House of Representatives and a conviction by the Senate.
Second, as the motivazioni concede, the fundamental law of the Vatican City State specifies that a pope can decide to reassign a civil or penal case to any body he chooses, no matter what stage the case may be in, without any possibility of appeal.
Once again, although the motivazioni correctly note that no pope has ever used that authority, it doesn’t change the fact that he has it – something Vatican judges, certainly, must have in the back of their minds when deciding how to rule, especially in a case where a pope has made his wishes clear.
Third, a pope can intervene in a criminal proceeding at any point, changing the rules at will. Pope Francis actually did so during the London case, issuing a series of four rescripta, or “decrees,” affording the prosecutor unusually broad powers during the investigatory phase.
In a system with a genuine separation of powers, such actions by the executive would be subject to judicial review. Consider the various executive orders issued by U.S. presidents, for instance, which have been struck down by the Supreme Court over the years as unconstitutional.
Yet as the motivazioni note, Vatican judges have no such power because of the clear principle established by canon 1404 of the Code of Canon Law, which, in Latin, states: Prima Sedes a nemine iudicatur, meaning, “The First Instance (i.e., the pope) is judged by no one.”
What all this boils down to is the following: Despite the best intentions of everyone involved, the structural realities of the situation make it difficult for a neutral observer to take the alleged “independence” of Vatican’s system of criminal justice seriously.
Does it have to be like this? The short answer is, “No.”
Theologically and ecclesiologically, a pope is the supreme authority over spiritual matters in the Catholic Church, especially faith and morals. However, there is no theological reason that a pope must also exercise absolute power over temporal affairs, such as disputes over criminal liability for failed investments.
Indeed, there’s every reason why popes shouldn’t wield such authority, and would be better off if they didn’t.
Most people assume that popes lost their temporal authority with the fall of the Papal States in 1870, which they did for almost the next sixty years. It was reborn, however, with the 1929 Lateran Pacts, which once again made the pope an absolute sovereign, albeit over a much smaller jurisdiction.
The fact that popes wielded absolute temporal power over the new Vatican City State was largely invisible under a series of pontiffs who rarely made much use of it. Francis, however, actually wants the Vatican’s criminal justice system to work, an entirely laudable aim but one which means he also faces the long-overdue question of how to make the system credible vis-à-vis modern concepts of due process of law.
In other words, it would help Francis (or any pope) to achieve genuine accountability if he were to voluntarily renounce control of the Vatican’s civil judiciary, introducing a genuine separation of powers for matters that don’t involve the faith. One could argue that doing so would be the natural culmination of what St. Paul VI said in 1970, on the 100th anniversary of the fall of Rome to the forces of a newly unified Italy, when he called the loss of temporal power “providential.”
For Francis, who canonized Paul VI in 2018, completing the late pontiff’s legacy in this regard would seem an especially fitting move.
Until such a reform occurs, it’s probably inevitable that many observers are going to find the sort of arguments presented in the motivazioni, however artfully or sincerely expressed, a bit hard to swallow.
